- (1.) The petitioners who are the plaintiffs in Title Suit No. 282 of 2002, have filed this revisional application under Article 227 of the Constitution of India challenging the Order No. 60 dated 21st November, 2008 passed by the learned Civil Judge (Senior Division), 1st Court, Barasat, North 24- Parganas rejecting the application under section 151 of the Code of Civil Procedure (for short the 'Code') filed by the petitioners for removal of the receiver. Facts relevant for consideration are that the joint properties of the parties in the suit consists of two immovable properties (a) Premises No. 3, Roy Nilratan Adhikari Road, Ariadaha, Belgharia, North 24-Parganas and (b) Premises No. 23, Graham Road, Ariadaha, Belgharia, North 24- Parganas and a country liquor shop under the name and style of M/s. Kamarhati C.S.Shop situated at 3, Roy Nilratan Adhikari Road, Ariadaha, North 24-Parganas. In the suit, the petitioners filed an application for appointment of receiver in which the learned Civil Judge by order dated 17th March, 2003 appointed a learned Advocate as the receiver over the business to collect rent from the tenants of the joint properties and to run the country liquor business of the parties. Being aggrieved, the opposite party No. 1 preferred appeal being F.M.A. 1489 of 2003. On 7th July, 2003 after hearing the parties, the Division Bench disposed of the appeal modifying the order dated 17th March, 2003 by passing an order, the relevant portion of which is as under: "For the purpose of appointment of receiver a strong prima facie case is required to be made out. At the same time it will have to be seen while appointing a receiver as to whether it will ensure to the benefit of the parties; whether the business will survive or it will be destroyed. In fact, a third party receiver will unnecessary create confusion. Normally receiver should be appointed among the parties. Admittedly, the defendant No. 1 was running the business since 1976 on the strength of the licence granted in his name. Even before the business was being carried on under a licence granted to the defendant No. 3 under whom the defendant No. 1 has become a tenant. THE property was purchased in the name of the defendant No. 3 in 1942. THE defendant No. 3 was not a party to the said consent decree. THEse are facts which prima facie are confusing. In the circumstances, we modify the order to the following extent: THE defendant No. 1 is hereby appointed as a receive in respect of the business carried on by him. He will keep accounts and submit accounts to the Court every three months. Such account should be audited by an auditor to be nominated by the Court either by consent of the parties or by the Court, as the case may be. THE auditor shall go on auditing the accounts every three months and submit its audit report to the Court. THE cost of the audit should be borne out of the business by the receiver. THE Receiver shall function as an officer of the Court without remuneration. Copies of such accounts shall also be furnished and open for inspection by the plaintiffs. In case of necessity, the parties may approach the Court for further orders with regard to the conduct of the business and the Court may pass appropriate order as it may deem fit and proper, having regard to the facts and circumstances of the case. This appeal is thus disposed of. We. however, make it clear, that all the above observations are tentative and shall not influence the Court in deciding the case on merit or with regard to any decision relating to the appointment, functioning and discharge of the receiver, as the case may be. This order will be effective only in respect of the business...."
(2.) According to the petitioners though the Division Bench had appointed the opposite party No. 1 as the receiver of the business which is the subject- matter of the suit, however, all along the receiver managed the entire business alone and did not render accounts to the petitioners. It has been stated that auditors, appointed by the Court below pursuant to the order of the High Court, by letter dated 8th September, 2005 had sent in their resignation indicating therein the reasons of such resignation. Finding no other alternative the petitioners, filed an application under section 151 of the Code seeking removal of the receiver. Thereafter, written objection was filed. The application was heard and order dated 21st November, 2008 was passed rejecting the application for removal of the receiver which is as under :- "Parties file hazira. The petition under section 151 CPC dt. 16.5.07 is taken up for hearing. Plaintiff files documents as per firisti. The Hon'ble Division Bench of the Hon'ble Calcutta High Court in CAN No. 3083/03 appointed the defendant No. 1 as receiver of this suit. No scope is there alteration on removal of the receiver by this Court. The Lower Court should always submits its order to the Higher Court. This Court has neither any jurisdiction or authority to remove the receiver nor it is permissible by the principle of judicial discipline and etiquette to pass any order by the lower Court which is in consistent with the spirit of the order passed by the Hon'ble Court. The petition thus stands rejected. To 24.4.09 for hearing injunction". Aggrieved, this revisional application has been filed. The matter was moved on 1st February, 2010 when directions were issued for filing of affidavits. Affidavits have since been exchanged and are on record. Learned Advocate appearing on behalf of the petitioners submits that High Court while disposing of the appeal granted liberty to the parties in case of necessity to approach the Court for further orders with regard to the conduct of the business and Court was at liberty to pass appropriate order as it found fit and proper, having regard to the facts and circumstances of the case. High Court in its order made it clear that the observations were tentative and should not influence the Court with regard to any decision relating to the appointment, functioning and discharge of the receiver, as the case may be. Thus, the High Court had empowered the Trial Court to manage the affairs of the business or functioning of the receiver. Since the receiver failed to discharge his function which is evident from the letter of resignation by the auditor, the application for removal of the receiver was filed. Since appeal was disposed of as evident from the order passed by the High Court, the learned Civil Judge was the Court competent to take up the matter. Though jurisdiction was conferred on the Trial Court, however, the Trial Court misread the order and failed to exercise jurisdiction. Referring to Order 40 Rule 4 of the Code it is submitted that since the application under section 151 of the Code was not considered on merit, it is not an appealable order. According to him, the Division Bench empowered the learned Civil Judge to consider an application for removal of the receiver the learned Civil Judge failed to exercise his jurisdiction and thus there was miscarriage of justice.
(3.) Learned Senior Advocate appearing on behalf of the opposite parties supporting the order under challenge has submitted that the order passed by the Division Bench was with regard to the conduct of the business and not regarding the removal of the receiver. Submission is made as the Court reached its conclusion and decision has been arrived at, same is an appealable order. According to him, the High Court cannot usurp the power where appeal lies. The question which falls for consideration is in view of the order passed by the Division Bench whether there was failure on the part of the learned Judge in exercising jurisdiction.;