- (1.) THIS F. A. F. O. is directed against an order of the court below dt. 5-9-79 directing the receiver to furnish a complete and proper account and to deposit a sum of money in Court. By this order, the property movable and immovable of the respondent (appellant ?) has also been directed to be attached until final settlement of the account.
(2.) IT appears from the facts of the case that a dispute about the cold storage was pending in the Court below and the plaintiff had filed the suit for the recovery of a larger sum of money for realisation of which a receiver was sought to be appointed to run the cold storage and to pay off the money due to the plaintiff. A receiver was appointed earlier on 8-8-78 but since he could not properly manage it he was removed and the appellant was appointed as receiver by an order dated 8-2-79. Both the parties were dissatisfied with the working of the receiver and they filed detailed objections in that regard. The Court, while considering those objections, came to the conclusion that the account furnished by the receiver was not free from blemish and it was necessary that he should be directed to furnish a complete and proper account and to explain about the disposal of the old material etc. belonging to the cold storage. In view of this, the impugned order was passed. A preliminary objection has been taken by the respondent that the appeal against an order of this nature does not lie. Under O. 43, R. 1 (s) of the Code an appeal lies from an order under Rules 1 and 4 of Order 40, Rule 1 of O. 40 is for appointment while Rule 4 is in the following terms: where a receiver (a) fails to submit his account on such period and in such form as the Court directs, or (b) fails to pay the amount due from him as the Court directs; or (c) occasions loss to the property by his wilful default or gross negligence, the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him and shall pay the balance (if any) to the receiver. It is contended that in the present case the Court below had not passed any final order. The order itself shows that the receiver has been directed to furnish the complete and proper account within fifteen days. Therefore, sub-cl. (a) of Rule 4 cannot apply. Similarly the receiver has not failed to pay the amount directed by the court nor there is any finding by the Court that any loss to the property has been occasioned due to the receiver's wilful default or gross negligence. It is, therefore, urged that the order passed by the court below is not one which is contemplated under Rule 4 of Order 40 of the Code. In fact after the receiver complies with this Order and the Court ultimately passes any final order in the matter that alone would be an Order contemplated by Rule 4 of Order 40 of the Civil Procedure Code.
(3.) HAVING heard the learned Counsel for the parties I find that the objection is well taken. Sri G. P. Mathur, learned Counsel appearing for the appellant, has urged that in the Order the Court had already formed an opinion and has indicated that the particulars in the matter have been wrongly shown in the accounts book. This, however, does not appear to be so. To me it appears that the court was only prima facie trying to judge the merits of the objections raised by both the parties against the receiver and in that connection the court has indicated that these are some of the matters which, prima facie, appear to be wrong. It is for this reason that an opportunity had been given to the receiver to furnish a complete and proper account. When the receiver replies to the objections raised by the parties and is then able to satisfy the Court that the accounts maintained by him were proper and that nothing wrong had been done by him, I see no reason why the Court will not consider the explanation given by the receiver before passing any final Order. It is also urged that the very fact that the Court had directed attachment of movable and immovable property belonging to the receiver makes this Order appealable as it would then be covered by Rule 4, Order 40. This also does not appear to be correct. The words 'property movable and immovable both belonging to the receiver shall remain attached till the final settlement of the account' clearly indicates that it was only in the nature of an Interim Order that recourse to attachment was taken. May be, the Court was under the impression that the property of the receiver may be frittered away in some way and in order to protect the rights of the parties this Order may have been considered necessary, but such an Order can only be passed under inherent powers of the Court and not by virtue of the power given under Rule 4 of Order 40. The attachment contemplated under Rule 4 can be directed only after the court has finally decided about the amount recoverable from the receiver. In this case, this has not been done as yet.;