P L D 1957 Dacca 194 (PLP)

RAHMAN, J.‑

This is an application for revising an order made by the Subordinate Judge, Dinalpur, on the 29th June 1954, in proceedings relating to the passing of and adjustment of the accounts of a Receiver. By this order the learned Subordinate Judge has, on the objection of some of the parties, disallowed certain items of disbursement said to have been made by the Receiver on account of the remuneration of persons employed by him in connection with the management of the property put in his charge, as also surcharged certain amounts for which the Receiver was held liable and which were said to have been realised by his employees or agents by way of Akhtar and Nazar from the Adhiar tenants of the estate. It appears that after the Receiver had filed his accounts for the years 13 58 and 1359 B. S., and the accounts were checked by the Sheristadar of the Court, a large number of objections were taken both by the plaintiffs and the defendants in the suit to the said accounts. The learned Subordinate Judge disallowed most of these objections but upheld two of them, namely,‑ (1) relating to the employment of two persons as agents of the Receiver in connection with the management of the estate, and (2) relating to the realisation of Akhtan and Nazar by such agents which were not credited to the estate. Since this is an application in revision we are here con cerned mainly in finding out if the order made by the learned Subordinate Judge is one without jurisdiction or whether he had acted with material irregularity in the exercise of his jurisdiction. On behalf of the petitioner it is contended that the order made by the learned Subordinate Judge is one which is without jurisdiction, for the enquiry upon which he entered in prucccLiii1gs for examining and passing the accounts of a Receiver, were outside the scope of such examination and passing of accounts. It is urged that in passing of accounts, the only questions which properly arise are as to the items of that particular account and involve no more than an enquiry as to whether all collections made on behalf of the estate have been duly entered in the accounts, and next whether all disbursements are payments properly made in respect of the estate. The questions relating to the system of management or for accounts on the basis of willful default or negligence are beyond the scope of such a summary enquiry and the proper procedure by which the latter can be determined is by way of a suit and not byway of exceptions to the Receiver's account. In support of this contention, reliance is placed on the cases of Coomer Satta Sankar Ghosal and others v. Ranee Golapmonee Debee and others (5 C W N 223), Haji Teller Rahman v. Golanz Gone (40 C L J 28) and Subal Chandra Kar v. Jatindra Mohan Ghose and another (1 L R 53 Cal. 881). This contention of the learned Advocate, it appears to us, is sound and the case reported in Coomer Satta Sankar Ghosal and others v. Ranee Golapmonee Debee and others, has been con sistently followed in the Calcutta High Court. The principle laid down in that case by Sale, J. is as follows :‑ "It is unusual and improper to raise questions with regard to the soundness or prudence of the system of management adopted by a Receiver or to seek to charge him for wilful default or negligence on an application by him to pass his accounts. These are not matter which can be disposed of in the shape of exceptions to accounts." The reason for such a rule is obvious. An enquiry during examination and passing of Receiver's account is from its very nature a summary enquiry and it would be grossly unfair if in the course of such summary proceedings, Receivers of the Court were to be saddled with liabilities which could only be properly determined after taking of evidence. On behalf of the opposite parties this principle enunciated by Sale, J. is not seriously disputed; but it is urged that in the present case no such elaborate enquiry was necessary and further, that some of the items for which the Receiver has been found to be liable were really items of disallowance of disbursements entered by the Receiver in his accounts. It may be that disallowance of the remunerations paid to agents employed by the Receiver and shown in his accounts as dis bursements, were matters which related properly to the passing of accounts; but with regard to the fixation of the liability for the Akhtar and Nazar; said to have been collected and not credited to the estate ; we cannot say, that these related to disallowance of items in the account. The liability for these latter could only have been imposed upon the Receiver on the basis of wilful default or negligence in the realisation of the income of the estate. These, as pointed out by Sale, J., do not come within the scope of the enquiry contemplated for examin ing and passing of Receiver's account. Since was agree with the principle enunciated in Coomer- Satta Sankar Ghosal and others v. Ranee Golapmonee Debee and others, we must hold that the learned Subordinate Judge went beyond the scope of such an enquiry in these proceedings. Furthermore the items relating to the remuneration of the agents are so mixed up with the other items that we do not think it will be possible for us to separate the two, particularly, as upon adjustment of all these items taken together the learned Subordinate Judge has directed the Receiver to deposit the sum of Rs. 1,323‑6‑6 in Court. In these circumstances, we must set aside the order of the learned Subordinate Judge, but in doing so, we do not express any opinion either one way or the other as to the correctness or otherwise of the items allowed or disallowed by the learned Subordinate Judge from the Receiver's account, lest it may prejudice either the Receiver or any of the parties in any subsequent suit that the parties may choose to institute against the Receiver. Before parting with this question, however, we must mention that curiously enough the learned Advocate appearing on behalf of the plaintiffs‑opposite parties in this application, supports the petitioner and adopts the arguments of the learned Advocate for the petitioner, although it appears from the order‑sheet that both the plaintiffs and the defendants filed objections to the Receiver's account. There is also one other matter affecting Receivers gene rally on which we feel that we ought to express our views. It is this, that on enquiry we are informed that the Receiver in the present case appointed the agents concerned without the sanction of the Court. It may be that when the management of an estate is generally entrusted with a Receiver he has a limited discretion to employ agents or servants, provided he does not delegate any one of the functions which be is sup posed to discharge himself. But it must be remembered that as a general rule a Receiver has no powers except such as are conferred upon him by the order which appoints him or by the practice or usage of the Court. He is merely an officer of the Court. His holding is the holding of the Court and he can do nothing which is likely to seriously diminish the funds of the estate or incur expenditure or impose a liability on the estate' without the special leave of the Court. It is a matter of ordinary prudence which all Receivers, in our opinion, should follow ; that whenever the necessity of employing agents or servants is felt, the Receiver should apply to the Court for its sanction, and whenever any difficulty is apprehended to seek the directions of the Court that appointed him, for, otherwise the Receiver takes upon himself the onus of proving that whatever he has done, he has done for the benefit of the estate entrusted to him and if the estate, even though not by the direct negligence or default, is saddled with any liability they Receiver may expose himself to the risk of being called upon to defend a suit for the realisation of any loss or damage suffered by the estate. In saying this, however, we are again not be taken to have expressed any view as to the liability or otherwise of the Receiver in the present case for that will fall to be determined in the suit that may be filed hereafter. With these observations we make the Rule absolute and set aside the order of the learned Subordinate Judge. The parties will be at liberty, if they so desire, to file a proper suit in a proper Court for determination of the liability, if any, of the Receiver. In the circumstances of this case, however, we make no order as to costs. The Receiver will be at liberty to withdraw the amount of Rs. 1,323‑6‑6 upon the deposit of which we insisted before we took this application up for hear ing. With regard to the disallowance of the Receiver's remuneration for the year 1360 B. S., this question was not agitated before us by the learned Advocate for the petitioner and we wish to make it clear that our order herein does not affect this disallowance of the remuneration of the Receiver by the learned Subordinate Judge, and this will not form the subject‑matter of any suit that may be instituted hereafter against the Receiver. AMIN AHMED, A. C. J.‑

I agree. K. B. A. Rule made absolute.