Ganendra Narayan Roy, J. - (1.) This revisional application is directed against Order No. 82 dated November 29, 1983 and Order No. 83 dated November 30, 1983 passed by the learned Subordinate Judge, Contai, District Midnapore in Title Suit No. 23 of 1982 It appears that in disposing of F. M. A. T. 1632 and 1633 of 1983 arising out of the said Title Suit No. 23 of 1982, this Court directed that the plaintiff's prayer for appointment of a Receiver in respect of Vehicles Nos W.G. B 3550 and W. G. B. 2270 would stand allowed. The Manager of the plaintiff Bank of the Contai Branch was appointed Receiver in respect of both the buses with further direction that the said Receiver would appoint defendant Nos. 1 and 2 as Joint Managers to run the buses subject to the supervision and control of the Receiver. The Managers would effect appropriate repairs in respect of Bus No. W. G. B. 3550 within a period of four months from the date. They would take delivery of Bus No. W. G. B. 3550 and would put it back on the route. Once the said bus would be put on the route, the entire sale proceeds in respect of the said Bus No. W. G. B. 3550 would he put in with Receiver subject to the disbursement by the Receiver of all expenses running the bus. In the event, the Joint Managers would not net in terms of the direction then the Receiver would he at liberty to remove the Joint Manager or either of them and appoint any other Manager in their place by seeking such other proper order or direction from the learned Subordinate Judge as the Receiver might think it necessary. The order of appointment, however, was subject to one condition, namely that as and when defendants' or either of their furnishing security by way of Bank guarantee or any property security to the satisfaction of the learned Subordinate Judge, Contai to the extent of Rs. 1,50.000/- the appointment of Receiver would stand vacated on and from the date the security would be so accented by the learned Subordinate Judge. It appears that pursuant to such direction of this Court, in the said appeals, defendant Nos. 1 and 2 furnished a bond and an objection to the said bond was filed by the plaintiff Bank. It appears that, such bond was furnished on July 7, 1983 and thereafter defendant No. 1 filed a fresh bond on August 3, 1983 in view of the fact that there was error in the description of property in respect of which the bond was furnished. If also appears that a Commissioner was appointed for the purpose of ascertaining the valuation of the property and the Commissioner submitted a report and the plaintiff Bank put an objection to such report. From Order No. 82 dated November 29, 1983 it arrears that the plaintiff was absent when the matter was taken up for hearing. The learned Subordinate Judge took into consideration the report filed by the Commissioner but did not consider the objection made by the plaintiff Bank on a finding that the said report was not at all maintainable. No reason has been indicated as to why the said objection was found to be not maintainable by the learned Subordinate Judge. It has also been indicated by the learned Subordinate Judge that the said objection was not pressed because the Bank did not appear at the hearing Accordingly, the objection filed by the plaintiff against the report of the Commissioner was rejected. It appears from the said order that the bond furnished by defendant No. 1 was not accepted on that date and the Sheristadar of the Court was directed to check the bend and submit a report. It appears that the Sheristadar had checked the bond and submitted a report and the report of the Sheristadar was persued by the Court. The bond filed subsequently on August 3, 1983 was accepted with retrospective effect from July 7, 983 namely, the date when the first bond was furnished. It has been contended by the plaintiff Bark in this revisional application that this Court directed for acceptance of Bank guarantee or property security to the extent of Rs. 1,50,000/- to the satisfaction of the learned Subordinate Judge. From the order it does not appear that the learned Subordinate Judge has indicated that he was satisfied that the property intended to be covered by the bond was valued at Rs. 1,50,000/- or more and he was satisfied about such property security. It has also been contended by the plaintiff petitioner that the objection of the Bank against the Commissioner's report on valuation was rejected simply on the finding that the same was not maintainable. It has been urged on behalf of the petitioner that it was the duty of the Court to consider the said objection and to give reasons for rejecting the same on the score of being not maintainable and it was not fair or proper to overlook the same simply because the Counsel for the Bank was not present when the Court had been considering the sufficiency and/or validity of the Bond. It may be noted that the Bank has given an explanation as to why the learned Counsel of the Bank was under an impression that the Judge, being under the order of transfer was not likely to take up the matter.
(2.) Mr. Ray, the learned Counsel, appearing on behalf of the plaintiff petitioner has submitted before us that the learned Subordinate Judge was directed to accept the property security on being satisfied that the property sought to be secured against the Bank's claim was to the tune of Rs. 1,50,000/-. He has submitted that from the orders passed by the learned Subordinate Judge if only appears that on the basis of the scrutiny made by the Sheristadar, the bond filed at a later stage was accepted with retrospective effect. He has also contended that if the earlier bond was defective requiring a fresh bond to be furnished, there could not be any occasion for accepting the subsequent bond with retrospective effect. Such acceptance of the latter Bone with retrospective effect is illegal on the face of it. Mr, Ray also submitted that the learned Subordinate Judge should have indicated the reasons for his acceptance of the bond as a property security for Rs. 1,50,000/- but it has not been held by the learned Judge that he was satisfied with the sufficiency and/or validity of the Bond. Mr Roy also has contended that in disposing of the said Miscellaneous Appeals, this Court directed for furnishing Bank guarantee or property security for Rs. 1,50,000/- and not a bond for such sum. The plaintiff petitioner was not furnished with a copy of the bond since filed by defendant No. 1 and the learned Judge had held in his earlier order that the plaintiff was not entitled to have a copy. In the absence of the copy of the bond filed by defendant No. 1, it was not possible for the plaintiff Bank to precisely ascertain the nature of the bond furnished by defendant No. 1 and to file objections thereto. Mr. Roy has, therefore, contended that the acceptance of the bond was made arbitrarily and on non-application of mind to the relevant facts germane for consideration of the learned Subordinate Judge. He has, therefore, submitted that the said order should be set aside and the Court should be directed to consider the question of acceptance of the same.
(3.) Mr. Sen, the learned Counsel, appearing for the defendant opposite parties has raised a preliminary objection to the effect that in the matter of accepting the bond the learned Subordinate Judge had acted as person a designatar. If the learned Subordinate Judge has accepted the security furnished by the defendant as sufficient security, such acceptance cannot be challenged either by way of appeal or by presenting a revisional application. In support of this contention, Mr. Sen has referred to the Bench decision of this Court in the case of Smt. Bibhabati Devi & Ors. v. Ramendra Narayan Roy & Ors., 42 CWN page 188. It has been held in the said decision that when the High Court, in its Appellate Jurisdiction, has directed security to be furnished by a party to the satisfaction of a lower Court or of the Registrar of this Court or any other authority, the decision of such authority on the sufficiency of the security cannot be questioned by means of an appeal or an application and the High Court cannot go behind the finding of the Court or such authority about the valuation or sufficiency of the security. It has, however, been indicated in the said decision that the High Court, can review its order on proper grounds, such as that the authority designated has not acted in accordance with the order or has acted improperly or has not come to any finding on the sufficiency or otherwise of the security. Referring to the said decision, Mr. Sen has contended that the learned Subordinate Judge after considering the valuation report of the Commissioner has accepted the security as sufficient to cover the amount of Rs. 1,50,000/-. Accordingly, the plaintiff petitioner should not be permitted to challenge the decision of the learned Subordinate Judge on the sufficiency of the security, in this revisional application, Mr. Sen has also submitted that the plaintiff Bank did not appear before the learned Subordinate Judge when the matter was taken up for acceptance of the bond furnished by the defendant No. 1. Accordingly, the learned Subordinate judge had considered the report of the Commissioner and after getting such bond scrutinised by the Sheristadar, has accepted the same. In the aforesaid circumstances, it cannot be contended that the learned Judge has acted arbitrarily or has not considered the sufficiency of the security. It should be noted in this connection, that Mr. Roy has also contended that the property security or the bond does not become valid and effective until the same is registered because the valuation of the bond and or the property security is admittedly for Rs. 1,50,000/-. In this connection, Mr. Roy has referred to a Bench decision of this Court made in the case of Kasemali v. Ajoyendu Paul and Ors., reported in AIR 1956 Calcutta 375. It has been held in the said decision that where a security bond given under section 17 of the Provincial Small Cause Court's Act, on the face of it, purports to create right, title and interest in properties valued over one hundred rupees, the bond requires registration and where it is not registered, it is not a valid and effective-bond. Mr. Roy has submitted that on the face of the order, if appears that the said bond was not registered and unless the security bond is registered, the same does not become effective. Accordingly, there cannot be any question of accepting the said bond with retrospective effect. Mr. Roy has submitted that the direction of this Court for furnishing property security or Bank guarantee for a sum of Rs. 1,50,000/- was precisely for the purpose of securing the plaintiff Bank for the said sum of Rs. 1,50,000/-. In the aforesaid circumstances, the Court must ensure that the Bond and/or the property security was sufficient to cover Rs. 1,50,000/-. The Court should also ensure that such security is duly registered so that the Bank can ultimately fall back op the said security for recovery of the said amount. He has submitted that unfortunately the learned Subordinate Judge has not considered the case in its proper perspective and by accepting the bond without ascertaining that the bond was sufficient and was also a valid and effective bond on being registered, the interest of the plaintiff petitioner has been seriously affected, Mr. Roy has submitted that the net result of such improper acceptance of the bond is that the plaintiff ceases to remain a Receiver from the date of the acceptance of the bond with retrospective effect and the defendants who had been running the bus as officers of the Receiver can how run the bus independently on their own account. Mr. Sen the larned Counsel for the opposite parties has however, submitted that whether the said bond was registered or not cannot be ascertained from the order itself and the petitioner, has not contended that such registration was made by the defendant. As the factum of registration is a question of fact, such contention should not be allowed to be raised for the first time by the learned Counsel for the petitions before this Court. After considering the respective submissions made by the learned Counsels for the parties it appears to us that the learned Subordinate Judge has rejected the objection made by the plaintiff petitioner on the ground that the same was not maintainable. Unfortunately, the learned Judge has not indicated as to why such objection is not maintainable. Although a Commissioner was appointed for ascertaining the valuation of the property intended to foe severed by the bond in question, it does not appear from the impugned order that the learned Judge has come to an independent finding that the valuation of the property covered by the bond is sufficient to cover Rs. 1,50,000/- Mr. Roy, in our view, is justified in his submission that before accepting the bond, the learned Subordinate Judge must have satisfied himself that the property covered by the bond wars valued not less than Rs. 1,50,000/-. It also appears to us that in the absence of registration the bond does not become effective and as such the same cannot be accepted to be a vaild bond Although such contention was not raised before the learned Subordinates Judge and has not beets specifically stated is the revisional application but the legal consequence of an unregistered bond can be taken into consideration by us. As a matter of fact, the earlier bond on the defendant's own showing, was defective because the property was not properly described and a subsequent bond was furnished as a later date. Even if we proceed on the footing that after necessary, correction of the description of the property the subsequent bond has been accepted, the same cannot be accepted wish retrospective effect. In the facts of the case, it appears to us that the Court has not considered the question of acceptance of the bond properly and has not made independent finding about the sufficiency of the bond to cover the said sum of Rs. 1,50,000/-. In the circumstances, the decision made in the case of Bivabati Devi, (42 CWN 188) does cot support the defendants opposite parties but supports the contention of the petitioner, that in view of the irregularities in the mattes of acceptance of that bond, the petitioner can challenge the property and/or the validity of the orders passed by the learned Subordinate Judge in the mattes of acceptance of bond. The impugned orders are, therefore, set aside and the learned Subordinate Judge is directed to consider the question of acceptance of the said bond in terms of the direction given by this Court in disposing of the said miscellaneous appeals and also in terms of the observations made in this order.;