P.C. Lall Choudhury vs S.A. Mojib and Others

Reuben, J.—These cases arise out of Title Suits Nos. 20 of 1933 and 28, 29 and 30 of 1931 in the Court of the Subordinate Judge at Parnea relating to certain purchases of patni property made by Raja P.C. Lall Choudhury. The plaintiffs patnidars sought to get the sales set aside. The suits were compromised, and, under the terms of the compromise, a receiver, Mr. S.A. Mojib, a pleader, was appointed to take charge of the suit properties. It was agreed that on the plaintiffs paying certain amounts to the Raja Sahib by a certain date, the sales of the patni property would be set aside, and, failing payment, as specified in the compromise, the sales would stand confirmed and the plaintiffs would have no right to claim a refund of payments, if any, made by them in pursuance of the compromise. All the plaintiffs failed to make due payment as required, with the result that the sales of the patni property stood confirmed. The cases before us relate to the passing of the accounts of the pleader receiver. These accounts were checked by a Commissioner appointed by the Court. The Commissioner recommended that certain items appearing in the receiver''s account should be disallowed. The accounts were, however, passed by the Subordinate Judge. Hence the Raja Sahib has come to this Court. As he was not certain whether an appeal lay, he has filed the petitions in revision by way of precaution.

The items challenged will be detailed by me below. There is, first of all, what is called tahrir, a charge made by the estate amlas and realised by them from the tenants at the time of realising rents and granting receipts therefor. Apparently following the custom of the estate, these amounts appear in the estate accounts; but the money is kept by the estate amlas. During the period that the receiver was in charge, the amount realised was as 4623 and odd. The Raja Sahib claims that the whole amount should be paid to him as an income of the estate. The Subordinate Judge took the view that although it appears in the estate accounts, it is not an income of the estate but is merely an extra remuneration of the estate staff.

Item 2 is Rs. 6158 being the amount of arrears of rent due, which has beoome barred owing to the omission of the receiver to file suits for their recovery. In'' connection with the amounts, the receiver had applied to the Court for instructions as to whether suits should be filed, and the Court had directed him to proceed according to his own discretion. The Subordinate-Judge apparently agreeing with the Commissioner, held that the discretion had been properly exercised.

Item 2 is a charge on account of expenses of collection. Under the terms of the compromise, the estate was to be liable for collection expenses to the extent of seven per cent, of the income and expenses beyond that limit incurred by the receiver were to be paid by the patnidars. The Raja Sahib asked that this excess amount should be paid to him by the receiver, who might then take such action as he thought proper to realise the money from the patnidars. The Subordinate Judge, holding that under the compromise it was not contemplated that the receiver should take full charge of the management but that the actual collections would remain in the charge of the original patnidars, came to the conclusion that the Raja Sahib must proceed in regard to this excess amount not against the receiver but against the patnidars, that is to say, the plaintiffs in the four suits.

The next item is that of illegal gratification said to have been paid in connection with cases filed in Court of law an item which is sometimes covered by the vague expression "miscellaneous expenses." In the opinion of the Subordinate Judge, there was no justification for penalizing the receiver because he had been honest enough to show in his accounts the real nature of the expenses. Another reason given by him is that these expenses were incurred not by the receiver but by the servants of the patnidars who were actually managing the affairs of the estate.

The next item objected to is camp expenses in respect of fooding charges, which are described as incurred by the receiver without the sanction of the Court. In the opinion of the Subordinate Judge, the sanction of the Court was not necessary since the compromise between the parties had settled that whatever the expenses, they were to be payable up to the limit of Eeven per cent, of the collection by the estate, and above that by the patnidars.

Finally objection was raised to some expenditure which was not supported by detailed accounts and vouchers in writing. The Subordinate Judge disallowed the objection because he found nothing to suggest that the receiver had been acting dishonestly and he had no reason to doubt the receiver''s honesty.

It is conceded that the matters which came before the Subordinate Judge on this question were within his jurisdiction and the utmost that is urged before us is that, in deciding the issues that arose before him, the Subordinate Judge decided incorrectly. No question of lack of jurisdiction or material irregularity in procedure was raised. So far as the petitions in civil revision are concerned, therefore, there seems to me no reason to interfere.

On the authority of Shriniwas Kuppuswami Mudliar Vs. M.C. Waz, , it has been urged that in these cases an appeallies, the order of the Subordinate Judge being an order rejecting an application under Order 40, Rule 4. This rule provides that in any one of three sets of circumstances the Court may direct the property of a-receiver to be attached, and may sell such property and apply the proceeds to make good any amount found due from him or any loss occasioned by him. These sets of circumstances are; (a) if he fails to submit his accounts at such periods and in such form as the Court directs or (b) if he fails to pay the amount due from him as the Court directs, or (c) if he occasions loss to the property by his wilful default or gross negligence. Neither Clause (a) nor Clause (b) has any application here. Clause (c) requires wilful default or gross negligence, and an appeal cannot succeed unless either wilful default or gross negligence is proved. Our attention has not been drawn to any evidence on the record from which; either "wilful default" or "gross negligence" can be inferred. In these circumstances even if it be; held that an appeal lies, the Baja Sahib would not be entitled to succeed.

In my opinion the appeals must be dismissed with costs. The petitions in revision will also be dismissed; but there will be no order as to costs.

Shearer J

I agree.