An application under Order 40 Rule 4 of the Code of Civil Procedure for removal of a Receiver and appointment of new Receivers is not maintainable where the premises in question were never the subject matter of the suit and the Advocate-Receiver was never appointed in respect of the same.

( 1 ) THESE two revisional application heard analogously have been preferred by the respective defendants-petitioners viz. , Tapan Tanay Halder and Mukunda Chandra Halder under section 115 of the Code of Civil Procedure against the order dated 24. 5. 1994 passed by the learned District Judge, 2nd Court, Alipore in Misc. Appeal Nos. 77, 78 and 98 of 1994 (heard analogously) reversing the order dated 11. 2. 94 passed by the learned Assistant District Judge, 7th Court at Alipore in Title Suit No. 169 of 1987 allowing an application under Order XL Rule 4 of the Code of Civil Procedure preferred by the petitioner Mukunda Chandra Halder of C. O. No. 2652 of 1994. These two revisional applications heard analogously have been preferred by the respective defendants-petitioners viz. , Tapan Tanay Halder and Mukunda Chandra Halder under Section 115 of the Code of Civil Procedure against the order dated 24. 5. 1994 passed by the learned District Judge, 2nd Court, Alipore in Misc. Appeal Nos. 77, 78 and 98 of 1994 (heard analogously) reversing the order dated 11. 2. 94 passed by the learned Assistant District Judge, 7th Court at Alipore Title Suit No. 169 of 1987 allowing an application under Order XL Rule 4 of the Code of Civil Procedure preferred by the petitioner Mukunda Chandra Halder of C. O. NO. 2652 of 1994.

( 2 ) IT may be mentioned here that the original number of the Title Suit No. 169 of 1987 was Title Suit No. 44 of 1971 filed in the 10th Court of the Subordinate Judge at Alipore which was successively transferred to different Courts and ultimately re-numbered as Title Suit NO. 169 of 1987 of the 7th Court of the Assistant District Judge at Alipore. The aforesaid suit was filed on 17. 9. 71 by one Sri Hara Lal Halder since deceased against the present two petitioners and others for dissolution of partnership and for accounts etc. , in respect of the assets of the partnership business as detailed in the plaint-schedule. It was the plaint case that the partnership was created by a registered Deed executed by the parties on 14. 2. 68. It may also be noted that the aforesaid suit abated on the death of the original plaintiff whose heirs were not substituted according to law. The trial Court by order no. 211 dated 25. 4. 75 ordered that the suit to abate.

( 3 ) BUT the trouble started since the abatement of the suit due to in fight among the defendants over a property of the deceased plaintiff being premises No. 91, Mahatma Gandhi Road, P. S. Budge Budge. The records of the said dead suit have become a strange labyrinth of indiscriminate papers, application and orders passed by the trial Court and the Appellate Courts at different points of time. However, it would be necessary to note the undisputed or admitted facts on record for the purpose of appreciating the scope of the present two revisional applications and to pass appropriate orders on the same.

( 4 ) AFTER the filing of the suit and during the life-time of the original plaintiff, the parties to the suit were appointed as Receiver over the plaint-schedule properties as per direction of the learned Appellate Court vide order no. 76 dated 31. 7. 72. The Appellant Court's order was passed by the learned Additional District Judge, 2nd Court at Alipore in Misc. Appeal No. 198 of 1972 on 18. 7. 72. This High Court in its revisional jurisdiction modified the aforesaid order of the First Appeal Court and directed as follows in C. R. No. 2392 of 1972 by Order dated 4. 4. 72:-"all the parties before us agree preferably practising lawyer of the Alipore Court should be appointed Receiver. We think that the parties who were appointed Receivers of the different businesses by the Court of Appeal below should be left incharge of the said business, but under the control and supervision of the Receiver to be appointed by the Trial Court". On the basis of the aforesaid order, the Trial Court passed order no. 87 dated 2. 6. 73 appointing one Mr. Dipen Dey, a practis