These are two rules obtained on behalf of Mr. W.R Fink, Receiver of the estate of one Haji Cassim Ariff, deceased, calling upon the Municipal Magistrate to show cause why the fines imposed on him under secs. 320 and 574 of the Municipal Act should not be set aside.
The fines were imposed on him for not taking steps to close certain service privies and to make certain structural alterations in certain premises under his control as receiver.
It is contended that the conviction of the Appellant is bad: (1) because the Appellant is not the “owner” of the premises, (2) because the sanction of the Court had not been obtained to his prosecution, (3) because the Receiver had not under his order of appointment the power to incur the expenditure required to carry out the orders of the Corporation, and (4) because the Appellant was doing all he could to obtain funds from the Court to enable him to comply with the notices.
We think the rules must be made absolute on these grounds. Mr. Fink as Receiver is not the owner of the premises within the definition of the term as contained in the Municipal Act. He may be receiving rent for the premises, but he does not receive it “on his own account or as agent or trustee for any person or society or for any religious or charitable purpose.” He receives the rent as an officer of this Court and as manager of the property on its behalf.
Then, in the case of Dunne v. Kumar Chandra Kishor, it has been decided that a receiver cannot be made a party to any suit or proceedings without the leave of the Court appointing him.
Finally, on the merits we have satisfied ourselves by examining Mr. Fink's letter of appointment that it was not within Mr. Fink's power to incur the expenditure required of him, without the sanction of the Court, and that he has been doing all he can to collect the necessary funds so as to enable him to comply with the requisition of the Corporation after obtaining the sanction of the Court to his doing so.
For these reasons we make these rules absolute, the fines, if paid, will be refunded.