Thomas Cunliff Tweedie v. Pokea Khatun .

Carnduff, J.:— This appeal and the rule connected with it are directed against an order of the Subordinate Judge of Backergunge, allowing the receiver, appointed during the pendency of a suit to enforce a mortgage, the sum of Rupees 1,288 as remuneration in respect of his management of the mortgaged property being 12½ annas of the Hatonria Estate, in the months of Asin to Pous, 1319 B.S The facts are peculiar and may be thus briefly stated.

2. In the first instance, the Subordinate Judge refused to appoint any receiver. Against this refusal an appeal was preferred to this Court, and it succeeded. Brett and Chapman, JJ., held that the mortgagees were entitled to have a receiver appointed, and they went on in their judgment as reported Eastern Mortgage and Agency Co., Ltd. v. Rakkea Khatun . [1912] 17 I.C 202., to express the opinion that the appellant and petitioner before us, Mr. Tweedie, “would be a suitable selection” and “should be appointed”.

3. They might perhaps have made the appointment themselves on the strength of the provisions of Section 107(2) of the CPC, but, in my view, they did not do so. The case was sent back to the Subordinate Judge, who (as I think was intended) made the appointment under O. 40, R. 1, of the Code, by issuing his writ of 30th September 1912, to Mr. Tweedie.

4. Order 40, R. 2, provides that the Court may, by general or special order, fix the amount to be paid as remuneration for the services of the receiver appointed by it under R. 1, and this the Subordinate Judge did by embodying in his writ the direction that “out of his collections he (the receiver) would get 12/1/2 per cent only of the amounts he actually collected for his remuneration, including costs of collection (and) excluding costs of litigation, if any, in connexion therewith.” Regarding this direction no complaint has been made by either party. But what is now attacked is a subsequent order in modification of it passed in the following circumstances.

5. A common manager of the entire Hatonria Estate had been appointed under the Bengal Tenancy Act, 1885 and owing to this appointment together with certain orders which had to be cancelled by this Court as improper and erroneous, Mr. Tweedie was obstructed in his collection of the rents and profits, with the result that, through no fault of his own, he seems to have been able to collect, during the period under consideration only Rs. 1,047, while the common manager succeeded in collecting Rs. 24,695. Mr. Tweedie thereupon represented, when submitting his accounts, that he ought, in the circumstances, to be allowed, not only 12/1/2 per cent on the collections actually made by himself, as contemplated by the writ of 30th September 1912, but also 12/1/2 per cent on the collections improperly made by the common manager in respect of the mortgaged 12/1/2 annas share of the estate. He showed that he had throughout been maintaining a large establishment, and that he would be considerably out of pocket if he were allowed a percentage on his own collections alone. The learned Subordinate Judge, sympathising with him, came to the conclusion that some modification of the writ of 30th September 1912 was called for, and, after careful consideration of all the facts, by his order of 18th June, allowed Mr. Tweedie 12/1/2 per cent on his own collections (i.e, Rs. 131) plus 6 per cent on those of the common manager, i.e Rs. 1,157 or Rs. 1,288 in all.

6. This is the order which Mr. Tweedie now assails and asks us to interfere with on the ground that it is not sufficiently favourable to him inasmuch as it will leave him still a loser. Assuming, though not committing myself to the admission, that Mr. Tweedie was justified in incurring so much expenditure, I should say that his case is rather a hard one; but even then I am at a loss to discover any means of helping him. He is, I fear, inter apices juri's. If we were to hold that the Subordinate Judge had no jurisdiction to modify by his order of 18th June the direction contained in his writ of 30th September preceding, we should only frustrate the effort he made in Mr. Tweedie's favour. For the order of 18th June would have to go; the directions as to remuneration of 30th September made obviously under O. 40, R. 2, which are non-appealable and have, in fact, not been challenged by either side, would be restored unmodified; and under those directions, Mr. Tweedie would, so far as I can see, be entitled to only 12/1/2 per cent on the collections actually made by him, i.e, to Rs. 131, instead of Rupees 1,288. On the other hand, we could not hold that the order of 18th June was made with jurisdiction without holding that it was made under O. 40, R. 2; for I cannot yield to the contention that an order fixing the amount of remuneration can be taken out of R. 2, and brought within R. 1(d) because it involves “the application and disposal of the rents and profits.” Clearly, it is only out of these that such remuneration is ordinarily, if not invariably, provided. That being so, no appeal would be and there would be no case for revision, since it would in my opinion, be impossible to declare that the Court below acted illegally or with material irregularity in the matter. I feel, then, that the most I can say is that I hope that, now that Mr. Tweedie is firmly in the saddle as receiver and the best season for collecting the rents and profits is before him, he will shortly be able to make ample collections and recoup himself for any loss that he may have sustained so far, besides securing adequate remuneration for the future.

7. In the result I would dismiss the appeal and discharge the rule; but I would leave the parties to bear their own costs in respect of both.

Richardson, J.:— O. 40 governs the appointment of receivers and other incidental matters. Under Cl. (s), R. 1, O. 43, an appeal is allowed from orders made under R. 1, and R. 4, O. 40; but no appeal is allowed in respect of orders made under R. 2 which is as follows:

“The Court may, by general or special order, fix the amount to be paid as remuneration for the services of the receiver.”

8. For the mortgagees-respondents, it is argued in the first place that the order in question is in the nature of a special order under R. 2, that no appeal lies, and that whether the order be precisely the order which we should ourselves have made or not, the Subordinate Judge exercised his discretion judicially and was guilty of no impropriety or illegality which would justify our interference in revision. I agree that this affords a good answer to the appeal and the rule. The contention that the order in question is an order under Cl. (d), R. 1, O. 40, conferring on the receiver a power as to the application and disposal of the rents and profits of the properties in his hands and is therefore appealable cannot be entertained. The existence of the separate R. 2 goes far to negative this contention and it would be absurd to suppose that an appeal lies when remuneration is to be paid from rents and profits and that no appeal lies when it is to be paid from some other source. The suggestion again that the receiver having been appointed in pursuance of the order of this Court, this Court is the proper Court to deal with such matters as the receiver's remuneration will not bear examination. When a receiver is appointed by or by the direction of a Court of appeal in interlocutory proceedings in an original suit pending in a subordinate Court, the result for the purpose in view is the same as if the order passed on appeal had been passed of its own accord by the latter Court. The subordinate Court is bound to carry out the directions of the appellate Court so far as they extend but in all other respects its powers remain intact. When the appeal is disposed of the further conduct of the proceedings subject to the orders passed on appeal is restored to the subordinate Court. The parties must then look to that Court as “the Court” empowered to act under O. 40, subject of course to any rights which the parties may have to bring any further question which may arise before the appellate Court. In the present case this Court made no directions as to the receiver's remuneration to fetter the discretion of the Subordinate Judge.

9. If the merits were open to us, there might be a question whether the receiver acted properly in appointing a large establishment before he obtained possession under the order of this Court dated 3rd January 1913. But the merits are not open to us and it is sufficient to say that in the circumstances we have no power to interfere in appeal or in revision.

10. I agree that the appeal should be dismissed and the rule discharged without costs.

V.B/R.K

11. Appeal dismissed.