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PATNA HIGH COURT
S.B.Sinha, J.
Mahadeo Mahto
Versus
Hiralal Verma
Civil Revision No. 618 of 1989 ;
Decided On : MARCH 18, 1991
CIVIL PROCEDURE - ORDER 40 RULE 3 AND 4 - RECEIVER - ACCOUNTABILITY - COURT'S DUTY TO ENSURE EFFICIENT MANAGEMENT OF PROPERTY - INTERLOCUTORY ORDERS - RES JUDICATA - APPLICABILITY.
Fact of the Case:
The petitioners filed an application under Order 40 Rule 3 of the Code of Civil Procedure for rendition of accounts from the receiver appointed by the court in a partition suit. The court dismissed the application in limine, holding that a separate miscellaneous case could not be registered and that the petitioners could file a regular title suit against the receiver. The petitioners challenged this order, arguing that the court was obligated to inquire into the matter and issue necessary directions upon holding an enquiry.
Finding of the Court:
The court held that the order of the lower court was erroneous. It held that the provisions of Order 40 Rule 3 and 4 of the Code of Civil Procedure clearly provide for the accountability of the receiver to the court and that the court is under an obligation to inquire into any allegations of failure to produce accounts or other acts of misdemeanour by the receiver. The court further held that interlocutory orders do not operate as res judicata and that the earlier order of the court dismissing the plaintiffs' suit had become non est upon the withdrawal of the suit.
Issues: 1. Whether the court was obligated to entertain the application filed by the petitioners for rendition of accounts from the receiver. 2. Whether the order of the lower court dismissing the application in limine was erroneous.
Ratio Decidendi: 1. The court held that the provisions of Order 40 Rule 3 and 4 of the Code of Civil Procedure clearly provide for the accountability of the receiver to the court and that the court is under an obligation to inquire into any allegations of failure to produce accounts or other acts of misdemeanour by the receiver. 2. The court further held that interlocutory orders do not operate as res judicata and that the earlier order of the court dismissing the plaintiffs' suit had become non est upon the withdrawal of the suit.
Final Decision: The court allowed the application, set aside the impugned order, and directed the lower court to entertain the application filed by the petitioners and pass an appropriate order upon verification of the accounts, if the same had already been submitted by the Receiver.
1. This application is directed against the order dated 22-7-1989 passed in Misc. Case No. 1/89 arising out of Title Suit No. 9 of 1956 by Sri M.P. Chakraborty, 6th Additional Subordinate Judge, Hazaribagh, whereby and whereunder he dismissed the said application in limine.
2. The fact of the matter lies in a very narrow compass.
3. Gyani Ram (since deceased) father of the opposite party Nos. 1 to 4 filed a suit for partition against the petitioners and/or their predecessors-in-interest, who were arrayed as opposite party Nos. 15 to 18 therein.
4. In that case, it was contended on behalf of the contesting defendants that the properties belonged to them and the plaintiffs had no claim therein. In that case, however, a preliminary decree was passed and thereafter, an application for initiation of a final decree proceeding was filed. In the said proceeding, a pleader Commissioner was appointed and while he was preparing his report, an application dated 8-4-1983 was filed by the plaintiffs alleging inter alia therein that the defendants gave up their shares in favour of the plaintiffs is a result whereof, he became the sole owner.
5. By an order dated 7-7-1984, the learned Subordinate Judge, Hazaribagh has passed the following order: -
"That (i) the lands under management of the Receiver are released from the management of the Receiver. (ii) The khas possession of the plaintiff in personal capacity in respect of the suit lands mentioned in Schedules B and C in favour of the plaintiff is hereby declared, and (iii) let the release order and possession of the plaintiff in respect of the suit lands aforesaid be only published in village."
6. The petitioners filed a civil revision application against the said order dated 7-7-1984 which was admitted and the proceedings of the Court below was stayed.
7. However, during pendency of the said civil revision application, the plaintiffs filed an application for withdrawing the suit itself upon which this Court passed an order dated 4-8-1986 (Annexure-4), which is as follows: -
"When this case was called out, Mr. Kishore on behalf of the opposite party No. 1 submitted that opposite party No. 1, who is plaintiff in the Court below does not want to prosecute the partition suit i.e. partition suit No. 9 of 1956. He prayed that he may be allowed to withdraw that partition suit. If the partition suit is withdrawn the order impugned dated 7-7-1984 becomes non est. Mr. Kishore undertakes that the opposite party No. 1 shall file an application withdrawing the suit by the 18/08/1986. If no application is filed by that date the suit shall stand dismissed. With this observation, this application is disposed of."
8. On 19-8-1986, the plaintiff, however, filed an application that he is declared the owner of the suit property and he may be permitted to withdraw this suit with that observation. The plaintiff, however, did not file an application for withdrawing the suit by 18-8-1986 and by an order dated 10-3-1987, the plaintiffs suit was dismissed.
9. The plaintiffs filed an appeal as against the said order as a first appeal as also a Misc. Appeal which were registered as F.A. No. 62 of 1987(R) and M.A. No. 40 of 1987(R) respectively.
10. It is stated that during pendency of the suit, Gyani Ram was appointed as a Receiver and after him the opposite party No. 5 was appointed as a Receiver.
11. The petitioners filed an application for removal if the plaintiff from receivership, and the said application was allowed by an order dated 22-3-1988 (Annexure-6) by this Court in Misc. Appeal No. 96 of 1982(R) observing that the Subordinate Judge, where the case was pending was directed to appoint a receiver afresh in the light of the order passed by this Court earlier, and it would be better if the suit itself be disposed of expeditiously.
12. According to the petitioners, opposite party No. 5 had remained in possession of the suit properties in the capacity of a Receiver till 10-3-1987 but he did not render
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