Ramkumar Mahadev vs Ashutosh Ghatwal

Ross, J.—The learned Subordinate Judge of Deoghar has ordered that Babu Ramesh Chandra Sinha, Receiver of the Bohini Ghatwali estate should be relieved of his office and that Eai Saheb Debendra Nath Sinha, the General Manager of the Wards estate in the district, should be appointed receiver.

The learned Government Advocate in supporting this order contends that the appellate Court will only interfere with the decision of an inferior tribunal in the selection of a receiver if there is some overwhelming objection in point of propriety or some fatal objection in principle to the person named: Kali Kumari v. Baohhan Singh 17 C.W.N. 974. Now if this had been an original appointment, this principle would have been applicable and the judgment of the Court below would have had to be affirmed. But it is not a pure case of a new appointment. Babu Ramesh Chandra Sinha was appointed receiver of this estate as far back as 1916. Prom 1918 to 1928 his powers were limited to receipt and distribution of the surplus rents and profits after the satisfaction of the claims of Major Agabeg who by a consent order was appointed manager of the whole estate because of his interest in the Basauri mahal.

When Major Agabeg died, the matter was referred to this Court by the Subordinate Judge. Charges were made against the receiver, Babu Ramesh Chandra Sinha by certain of the creditors, and this Court in dealing with the situation that arose on the death of Major Agabeg decided that the dual management should come to an end and that the present receiver should either be made receiver of the entire estate or should be removed from office and another receiver appointed. At the same time the attention of the learned Subordinate Judge was drawn to the charges that were made against the present receiver and he was directed to go into the matter.

The investigation into these charges led to the complete acquittal of the receiver of all the accusations brought against him, but the Subordinate Judge decided to remove him from his office on the grounds that he was 64 years of age and that most of the decree-holders did not want him to continue. He also added that Babu Ramesh Chandra Sinha had recently been placed in charge of the larger ghatwali estate of Pathrole and that two estates would be too much for him. The matter of his appointment to Pathrole is now under consideration in this Court. With Regard to the attitude of the decree-holders, it appears that before the Subordinate Judge they were making these accusations and some of them were claiming the receivership for themselves. Now that the accusations have been disproved, their attitude has changed and the large majority of the decree-holders support the present receiver, and the appointment which has been made by the learned Subordinate Judge has the support of only one of the creditors, Sukhdeo Jugal Kishore whose claim is only Rs 6,652-11-0.

The clients of Mr. A.K. Roy who represent between them claims of over two lakhs of rupees, support the present receiver. So do the clients of Mr. S.S. Bose who represent a claim of Rs. 2,388 and the appellants in Miscellaneous Appeal No. 177 of 1928 representing claims of Rs. 23,701 oppose the new appointment and support either the present receiver or the other candidate, Babu Akhay Kumar Ghosh. Of the remaining creditors some appear to be neutral, but one, the Maharaja Bahadur of Gidhaur, whose claim is Ra. 51,000 supports the present receiver. There can be no doubt therefore that as against the appointment which has been made by the Subordinate Judge, the great mass of the creditors favour the present receiver, and in a matter of equitable execution of this kind the wishes of the creditors are entitled to great weight, as they have virtually the right of nomination. Moreover the other ground on which the learned Subordinate Judge has removed Babu Ramesh Chandra Sinha, namely, that he is too old for the office and is therefore incapable, was not a ground which had been taken by the creditors. No one had suggested that the receiver should be removed on this ground, and it should only be for proved incapacity that a receiver who has once been appointed should be discharged.

The learned Subordinate Judge has accepted the nomination of the Deputy Commissioner in this matter and the determining factor in his mind seems to have been that settlement proceedings are going on and that a younger man is required. This is a highly debatable question. The present receiver who has not been shown to be incapable of representing the estate in the settlement proceedings has a long and large experience of the estate and this at all events might be set off against his more advanced age. It seems to me that the learned Subordinate Judge has not approached the question in the proper way, and in view of the changed attitude of the creditors and their support of the present receiver, I have come to the conclusion that his order should not stand.

With regard to Babu Akhoy Kumar Ghosh, he receives the support of only two of the creditors representing between them claims of about Rs. 1,200. The principle upon which the learned Government Advocate has argued the case is applicable so far as he is concerned, because this is a matter of new appointment. He is not the receiver although he worked under Major Agabeg in the affairs of the estate, and clearly so far as he is concerned, there is no ground for interfering with the order of the learned Subordinate Judge.

With regard to security, it appears that Babu Ramesh Chandra Sinha has already given a general security to the amount of Rs. 2,500. I think that, as he is now to have charge of the entire estate, he should give further security to the satisfaction of the Subordinate Judge in the amount of Rs. 7,500.

I would therefore allow this appeal and set aside the order of the Subordinate Judge appointing Rai Sahib Debendra Nath Sinha as receiver of the Rohini Ghatwali estate and confirm the appointment of Babu Ramesh Chandra Sinha as receiver of the entire estate. Except in so far as they have been hereinbefore modified, the terms of the appointment will be as settled by the Subordinate Judge in the order under appeal. There will be no costs of the appeal.

Chatterji, J.

I agree.