D.K.Seth, J. - (1.) This appeal is directed against order No. 100 dated 17th April, 2000 passed by the learned Civil Judge, Senior Divsion, Durgapur in Title Suit No. 61 of 1995. Facts:
(2.) The plaintiff, in a suit for partition, is the appellant before this Court. The case has a chequered career. An application for appointment of Receiver filed by the plaintiff was allowed by the learned trial Court by an order dated 23rd May, 1996. One learned advocate was appointed Receiver by an order dated 20th June, 1996. The learned advocate had signified his unwillingness on 31st July, 1996. The sole defendant was appointed Receiver by an order dated 7th August 1996. Against the order dated 23rd May 1996 and 20th June 1996, the sole defendant preferred FMAT No. 2189 of 1996. This appeal was dismissed by this Court by an order dated 10th September 1996. In the said order, the Receiver was directed to deposit 50% of the collection in Court every month and to file quarterly statement of account. The trial Court by an order dated 7th February 1997 directed the Receiver to deposit 50% of the total collection in Court, in default the Receiver would be removed and one of the plaintiffs would be appointed Receiver. It appears from the record that the Receiver did not deposit the 50% of the collection made by him. The defendants preferred FMAT No. 1241 of 1997 against the order dated 7th February 1997. In FMAT No. 1241 of 1997, this Court by an order dated 18th September 1997 issued certain directions to the Receiver, which are quoted below:- 1. We direct the defendant-Receiver to file an application in the trial Court explaining his failure to comply with the order of the trial Court with regard to deposit of half of the amount of rent within one month after the Puja vacation. 2. If such an application is filed, the trial Court shall dispose of the same in accordance with law. At the time of disposal of the said application, if filed, the trial Court may also consider all adjustments that the defendant-Receiver may be claiming in respect of deposit of rent in the trial Court.
(3.) It is made clear that we have not gone into the merits of the claims and/or accounts made by the parties, which shall be dealt with by the trial Court while deciding the said application if filed.? The Receiver made an application before the learned trial Court seeking permission to deposit 50% of the rent collected after deducting the incidental charges. The learned trial Court by an order dated 27th November 1997 directed the Receiver to comply with the order of this Court. Against order dated 27th November 1997, the defendants preferred a revisional application being C.O. No. 2025 of 1997, which is alleged to be pending. The plaintiffs/appellants filed an application under Order 40 Rule 4 of the Code of Civil Procedure (CPC) praying for attachment of the properties of the defendant No. 1 Receiver on account of his failure to comply with the order of the High Court. By an order dated 3rd December 1997, the Receiver was asked to show-cause why his properties should not be attached and be put to sale. On 28th January 1998, the sole defendant being the Receiver Anil Kumar Das died. By an order dated August 5, 1998, the heirs of the deceased sole defendant were substituted. One Gan Sankar Chatterjee filed an application under Order 1 Rule 10 CPC of his addition as a party/defendant on the ground that one Tinkari Chattoraj had allegedly executed a Will in respect of one of the suit property in his favour and that a probate case in respect of the said Will is pending adjudication. This application also allowed by an order dated 5th August 1998. On May 18, 1999, the added defendant filed an application for stay of further proceeding of the suit till disposal of the probate case. By an order dated 11th August 1999, this application for stay was rejected. Thereafter, by an order dated 7th September 1999, the trial Court had recorded that the Receiver (the sole defendant) was asked by the learned Court to show-cause as to why his property shall not be attached and shall not be put to sale. But, before showing cause, the Receiver being the sole defendant died. His legal heirs were substituted. Since the sole defendant was the Receiver of the suit and he had collected the rent, but did not deposit the same, therefore, the legal heirs substituted in place of the sole defendant are bound to comply with the order of this Court on account of their having stepped into the sues of the sole defendant. The substituted heirs of sole defendant being the defendant Nos. 1, 2 and 3, now cannot be absolved from their liability to deposit 50% of the rent and other dues in terms of the direction of this Court. Therefore the said substituted defendants were directed to deposit 50% of the rents and other dues already collected since the filing of the suit till the date of the order before 5th October 1999. In default, law would take its own course. C.O. No. 2269 of 1999 was preferred against the order dated 11th August 1999 rejecting stay of the suit. This civil order was dismissed by order dated 16th September 1999. In these circumstances, the appellant/plaintiff had made an application on 22nd December 1999 praying for appointment of Receiver in place of the deceased Receiver. The Court had rejected the said application by an order dated 17th April 2000. It is this order out of which this appeal arises. Submission on behalf of the Appellants: Learned counsel for the appellants points out that after the death of the Receiver, the Receiver is to be appointed. Though the prayer for appointment of the plaintiff No. 3 has since been made by the plaintiff No. 3 as Receiver, but it was incumbent upon the Court to appoint the Receiver. The further contended that after the death of the Receiver, the heirs of the defendant No. 1 could not collect the rent. Such collection was without any authority. Therefore, in such circumstances, appointment of Receiver was incumbent. He further point out that he is ready and willing to participate in the final hearing of the suit, which has nothing to do with interlocutory matter. Since there was no stay operating in the matter of disposal of the suit, it could have been disposed of in the mean time. Submission on behalf of the Respondents:;