- (1.) In this first Appeal From the Order under Order 43 Rule 1(s) of the Civil Procedure Code (for short the Code) against the order dated 24.12.1993 rendered by Sri A.C. Verma, Civil Judge, Budaun, allowing the application of the receiver Nand Kishore Gupta, Advocate, in part in respect of the payment of the fees, the point for our determination is as to whether the Appeal is maintainable. The learned Counsel for the Appellant urged that the learned Civil Judge has erred in law in refusing the relief in respect of payment of the Appellant's fee substantially, consequently, This order is manifestly erroneous and deserves to be set aside.
(2.) After scrutinizing the merits of the submissions, we are entertainable grave doubts as to whether this F.A.F.O. is maintainable under Order 43 Rule 1(s) of the Code. It has to be ascertained as to whether the impugned order was passed under Order 40 Rule 4 of the Code, as in order to be appealable under Rule 1 (s) of Order 43, an order must have been passed either under Rule 1 of Order 40, or Rule 4 of Order 40. As it was an order in respect of payment of fee of the Receiver it was not an order under Rule 1 of Order 40. Let us see whether it was an order under Rule 4 of Order 40, as it was urged by the learned Counsel for the Appellant that impugned order was passed under Rule 4 of Order 40. Ex. Abundanti Cautela, the statutory provisions of Rule 4 of the Order 40 is set out. "Where is receiver (a) Fails to submit his account at such periods and in such form as the Court direct, or (b) fails to pay the amount due from him as Court directs, or (c) Occasion 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."
(3.) Before we proceed further to ascertain whether the impugned order was covered under the provisions of Rule 4, Order 40 of the Code, it is convenient to have certain principles of interpretation of the procedural law. The principles of interpretation of the procedural law are slightly different than the principles in respect of substantive law. In owners and parties interested in M.V. Vali Pro. v. Fernendeo Lopes and Others, 1989 4 JT 10 Hon'ble J.S. Verma, J. was pleased to observe as follows : "Rules of procedure are not by themselves an end but the means to achieve the end of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice Construction of a rule of procedure which promo.es justice, and prevents its miscarriage by enabling the Court to do justice in myriad situation, all of which can not be envisaged, acting within the limits or the permissible Construction, must be preferred to that which is rigid and negatives the cause of justice." In C.B.I. Special Investigation Cells v. Anupam,1992 3 BankCas 366, it was observed that "procedural law" is meant to further the ends of justice and not to frustrate the same and interpretation which furthers the ends of justice to be preferred. In Desh Bandhu Gupta v. N.L. Anand, 1993 5 JT 313 it was observed by their Lordships of the Supreme Court that the "procedure is the hand made to justice". Keeping in view salutary principles the interpretation of a particular provision of the procedural law has to be made. In our considered opinion, the procedure itself is not an end, consequently, the rule of procedure are the tools with a view to achieve the end of justice, such interpretation which promotes the ends of justice has to be preferred than the interpretation which obstruct the cause of justice. In the instant case, we proceed to interpret the Rule 4 of the Order 40, with a view to ascertain as to whether the application by the receiver, the Appellant, for the payment of his fee, was maintainable under Rule 4 of Order 40. Suffice it to say, that a bare reading of the aforesaid provisions would lead to irresistible conclusion that in case the receiver has failed to submit his account within such period and in such form as Court directs him to furnish the same or he fails to submit the account due from him as per direction of the Court or in case some of his acts have led to loss of the property by wilful default or gross negligence, in that event, the Court may direct his property to be attached or may, however, direct that such property be sold so that the same may apply to make good any amount found to be due from the receiver.;