JUDGMENT 1. THIS judgment must begin with the name of Nalini Ranjan Sarkar, now deceased, (hereinafter referred to, as Nalini Ranjan or N. R. Sarkar), an inhabitant of Netrokana, Mymensingh (now in East Pakistan). His skill was considerable. Familiarity obscures for the parties, what to outsiders were his marked characteristics. He became Finance Minister in the undivided Bengal in 1936. He himself was the Receiver in the Estate of Madan Theatres. He gathered fortunes. He became a member of the Viceroy's executive Council. As this appeal relates to the removal of me Receiver of his Estate, it is necessary to have the facts set out in some details. 2. NALINI Ranjan died on January 25, 1953 leaving behind him four brothers. The youngest is Saroj, the plaintiff-respondent No. 1 in this appeal. He filed the suit on September 10, 1956, for partition, and accounts and for appointment of a Receiver, in the Court of the Second Subordinate Judge, Alipore, against his other brothers namely, promode Ranjan (defendant No. 1, respondent No. 2), Pabitra Ranjan (defendant No. 2, since deceased) and Prafulla Ranjan (defendant No. 3 ). Another brother, Ramani Ranjan, predeceased Nalini Ranjan in 1947, leaving behind him two sons, Santi Ranjan and Amit Ranjan, who are defendants Nos. 4 and 5, respondents Nos. 7 and 8 respectively. Ramani's widow, Sm. Snehalata, is defendant No. 6, respondent No. 9. Pabitra's heirs namely, his widow, sm. Nirupama his son viz., Pradip Ranjan and his two daughters, viz. Sm. Namita and Sm. Anita, are defendants Nos. 2 series, respondents Nos. 3 to 6 respectively. Two outsiders, namely, Sri ramendra Chandra Roy, Sri Sudhir kumar Pattanabish. and two Joint Stock Companies viz. P. R, Sarkar and Co. (Private) Ltd., and N. R. Sarkar and Co. (Private) Ltd. are all impleaded as proforma defendants Nos. 7 to 10 (proforma respondents Nos. 10 to 13) respectively in the suit and in the appeal, on the allegations that some of the properties left by Nalini Ranjan, stand in their names and the suit should be decided in their presence. It presupposes classic clash of individual interests. The instant appeal by Prafulla, the defendant No. 3, is directed against the order of the earned Subordinate Judge, rejecting his application for removal of the Receiver, in respect of the disputed properties. which are valued at more than Rupees sixteen lakhs and a half. 3. It presupposes classic clash of individual interests. The instant appeal by Prafulla, the defendant No. 3, is directed against the order of the earned Subordinate Judge, rejecting his application for removal of the Receiver, in respect of the disputed properties. which are valued at more than Rupees sixteen lakhs and a half. 3. TO answer the questions raised in the appeal, the facts must necessarily: be set out but I doubt whether I can be so brief as I wish. It is not a case which could be resolved, by lawyer's learning only and I think I should adhere to the teachings of this Court's history. 4. HIS Lordship here dealt with certain facts. Continuing, his Lordship said with regard to certain movables : Though religion is not a term of precise content, God Ganesh was both in gold and silver. Avatar Buddha untouched by the barbarities of modern culture, followed suit. He believed in the efficacy of talisman. Hence gold and silver 'mudalis' found place in the list. 5. NO doubt there are easy chairs and grand-mummy chairs ; but even then they would Jose the customary presumption of the most fabulous things in an old House, as there is no Grand Father's bed with flounced velvet canopy, tassels, baubles, family crest, plump cherubs, coat-of-arm, monogram and there are even no swords and fire-arms to give a masculine atmosphere. 6. DELICATE porcelain or marble statutes or busts are not wanting and it might not be very wrong to assume that they are of long-forgotten beauties or of persons wearing ageless fashions, either standing or sitting, in pale sunlight and casting ghostly shadows, The inventory, if completed, might in the context, have possibly shown discreetly nude pictures, in plum coloured walls (may be blistered and blackened) and half a dozen of Venuses and quarter dozen Titans, supporting heaven on their shoulders, and at least two crouched lions on the threshold, with faded splendours. Nalini Ranjan certainly indulged in entertainments; otherwise glasses and flasks for whisky, champagne, port wine, liquor, cherry, brandy, claret in the Cellor, could not also have found place in the plaint Schedule. It seems that 'ranjani' (Nalini Ranjan's residence) was, in its original sumptuousness, a pleasure done, but in its extraordinary impractical proportions. 7. N. R Sarkar had not only blood pressure machine, stethoscope and measurement glass, but also a hammer. It seems that 'ranjani' (Nalini Ranjan's residence) was, in its original sumptuousness, a pleasure done, but in its extraordinary impractical proportions. 7. N. R Sarkar had not only blood pressure machine, stethoscope and measurement glass, but also a hammer. Like the ancient skull, the list does not provide an answer to all these articles. As life is all complications with no conclusion, Nalini Ranjan's assets also included 'lota' and 'blanket' ; but it does not appear whether the said acquisition were his first or the last. His Lordship observed : 8. I pause here to observe, that this a bit lengthy account of the properties, occupying about 50 closely typed pages of the plaint Schedule, - a fertile source of litigation, is given, not for the purpose of a Pathetic reminder that sudden riches and extravagance, court immediate misfortune but to test one of the charges against the Receiver that he did not attempt 10 take possession of most of the properties, in spite of the specific allegation in the plaint. The Plaintiff filed an application for appointment of a Receiver of the suit properties. The main allegation was that the defendant No. 1 alone had boon virtually managing most of the asset left by N. R. Sarkar. Since the death of Nalini Ranjan, defendant No. 1 had wasted vast sums of money in needless litigations and in incurring expenditure, most of which are the results of his gross mismanagement. It was categorically stated that he mis-appropriated the common, fund and a sum of about two lakhs of rupees has been wasted to the detriment of the estate and to the co-sharers individually. His submission was that if the said state of things was allowed be continue, the suit properties would be completely frittered away. 9. THE application was resisted by the defendants Nos. 1 and 2 jointly. waste were denied. Defendant No, 1, adopting the general hands - off attitude, claimed the property being items Nos. 1 to 6 set forth in Schedule 'a', to be his self-acquired properly. Defendant No. 3 filed a petition of objection which was subsequently withdrawn. 10. THE learned Subordinate Judge by his order No. 67 dated August 18. 1958, infer alia, held that the defendant No. 1 admitted that the inventory was not complete. It was round that the defendants Nos. Defendant No. 3 filed a petition of objection which was subsequently withdrawn. 10. THE learned Subordinate Judge by his order No. 67 dated August 18. 1958, infer alia, held that the defendant No. 1 admitted that the inventory was not complete. It was round that the defendants Nos. 1 and 2 "do not deny the keys of almirahs and iron safes in which those cash and jewelleries were kept, being with the defendant No. 1 at present. " The learned Subordinate judge continued "for whatever reasons the inventory of the articles, cash, jewelleries, etc., might not have been completed the fact by itself is sufficient to rise to an apprehension in the mind of the plaintiff, specially when the keys kept in the custody of the defendant No. 1, that he may not get a fair deal In the matter. " The learned Subordinate Judge. without fixing anybody with responsible for the lose of the Swastika Press further found that the same approximately rupees four lakhs, was sold for an inadequate price of rupees one lakh only. According to the learned Subordinate -Judge: "the brothers remained at logger-herds rendering unity of action impossible". Regarding the common land of about one and half lakhs of rupees, mostly being withdrawals from the different Banks, the learned Subordinate Judge found : "but from the circumstances and probabilities of the case it seems to me that all these affairs were a single man-show and that single man was no other than defendant No. 1" It was roughly calculated that the plaintiff was entitled to receive a sum of Rs. 12,000/- per year in his one-fourth share alone, from the dividends of New Tea Company. But "he did not get a single copper during the period of about two years from 20th March, 1955 to 11th March, 1957. " The learned subordinate Judge observed that the expenditure on the litigations, ''appears to be out of ail proportion. " Accordingly, he was "inclined to hold that the circumstances arising out of it are sufficient to give rise to a reasonable suspicion in the mind of the plaintiff that the common fund has not been properly administered". Re therefore emphatically concluded that "in the circumstances, I think that it is a strong circumstance justifying the appointment of a receiver : 11. Re therefore emphatically concluded that "in the circumstances, I think that it is a strong circumstance justifying the appointment of a receiver : 11. THE learned Subordinate Judge recorded : "as regards the properties standing in the name of defendant No, 1, it is admitted that he alone has been getting usufructs thereof. " He observed : "it is fit and proper therefore that Rending disposal of the substantial question of title to these properties, the usufructs arising out of them and of all other properties similarly held, should be deposited in Court. This is another circumstance for which I consider the appointment of a receiver to be just, convenient and highly expedient and fully warranted under the circumstances of the case. " 12. THE learned Subordinate Judge continued ; "in the present case there cannot be any denial of the fact that the defendant no. 1 although he is not the Karta of the joint family consisting of the four brothers, has been in virtual management of the properties since the demise of N. R. Sarkar. It is in his custody that most of the share scrips and valuable securities which formerly belonged to N. R. Sarkar arc now lying. It cannot further be denied that during the period in which the defendant No. 1 had been in virtual exclusive management of the properties, the plaintiff and probably the defendant No. 3 have not got a single copper out of the joint properties." he silently accepted the orthodox view and ultimately granted the plaintiff's application but the Receiver must be a third party. Thus came the judicial weapon to strike down the waste of the properties. Although on his scale of values, the parties did not occupy a preferred position, he did neither disguise the difficulties nor readily permitted the technicalities to frustrate the ultimate. Mr. Manindra Chandra Neogi, an Advocate, practicing at Alipore Courts, was thus appointed a Receiver of the properties - both moveables and immovables - pending disposal of the suit or until further orders. The court directed that on his furnishing security "the Receiver will take possession of the suit properties immediately on receipt of the writ and the parties will afford him every facility to take such possession. The receiver shall have all powers regarding the suit properties as set forth in Order 40, rule 1, Civil Procedure Code. The court directed that on his furnishing security "the Receiver will take possession of the suit properties immediately on receipt of the writ and the parties will afford him every facility to take such possession. The receiver shall have all powers regarding the suit properties as set forth in Order 40, rule 1, Civil Procedure Code. " he was further directed to render accounts "at intervals of every three months commencing from the date he assumes the office of the Receiver. " The said Receiver is respondent No. 14 in the instant appeal. On September 2, 1958 the writ was issued in his favour. 13. ON that very day, an appeal was taken by the defendants Nos. 1 and 2 to this Court, against the said order appointing the Receiver, giving rise to F. M. A. No. 7 of 1959. Defendant No. 2, was however transposed to the category of the respondent as he did not intend to prosecute the appeal. It seems that he was in the whimsical situation between tragedy and comedy, inclination drawing one way and a long strong persuation, the other. The other co-sharers supported the order though some of them re-emerged in the present appeal to pass again into limbo. An interim order for stay of operation of the said order in respect of Schedules A and D of the plaint was obtained (Civil Rule No. 3032 (M) of 1958). On October 23, 1958 the Receiver made an application before the vacation Judge at Aplipore and obtained an order of injunction by which the Managing Agents of New Tea Company were restrained from holding the extra-ordinary general meeting. Towards this early period the sympathy of the Receiver was not so completely and automatically enlisted for the defendant No. 1, who preferred an appeal to this Court giving rise to F. M. A. No. 65 of 1959. An application was thereafter moved against the Receiver for contempt of Court. On December 15, 1959 the said appeal No. 65 was allowed. 14. NEXT day i. e., on December 16, the other Appeal being No. 7, was disposed of and the appointment of receiver was confirmed with these words : "from the affidavits and counter-affidavits filed by the parties it would appear that there is a serious dispute between the parties about the possession of valuable movable properties such as stocks and shares of Companies etc. It is just and convenient that a Receiver should be appointed in this case for the safety and preservation of the disputed properties and for preventing unnecessary quarrel among the co-sharers pending the final disposal of the partition suit. We therefore uphold the order of appointment of the Receiver made by the Court below," subject to the modification, namely that, the Trial Court should make "some sort of enquiry", as to whether the shares of the Companies standing in the name of the defendant No. 1 (Promode) or in the name of Proforma defendant No. 9 (P. R. Sarkar and Co. (Private) Limited) were benami and "if after making such enquiry, the Court is of opinion that the allegation of benami has been substantiated prima face by the plaintiff respondent, then alone the Court will direct the Receiver to take possession of those shares. " (Bottom of page 21 of the Paper Book ). On September 14, 1960 the defendant No. 3 Profulla, appellant herein, filed an application for removal of the Receiver. The charges were various and serious. Without much elaboration, it is said that the sign of the danger is represented by the Receiver, who combines in himself a high concentration of incompetence and inefficiency. His self-satisfaction had reached a point at which he could not tell the difference between food and fifth. He had developed a thick, protective skin. He shut himself up in his own desires. He thought himself free from Court's directions. He followed distasteful doctrines, when years of thought have established other standards. Only the sky was his limit to what he did, in the name of a Court's officer. He did not breath life into the old parchment of the writ. At limes he was as dispassionate as the empty benches. At other times he was obstinate in errors He, in certain cases again, rested upon or hide behind the hallowed generally of so-called discretion. He rightly created new opportunities on malignantly generating insecurities. He on certain occasions willfully abused his power, not in pursuit of a mirage. He invariably submitted free-wheel reports, inevitably forfeiting the credit attached thereto. Taking the arguments in order, which I would do presently, would make all these submission; clearer. 15. He rightly created new opportunities on malignantly generating insecurities. He on certain occasions willfully abused his power, not in pursuit of a mirage. He invariably submitted free-wheel reports, inevitably forfeiting the credit attached thereto. Taking the arguments in order, which I would do presently, would make all these submission; clearer. 15. THE learned Subordinate Judge rejected the application and passed his order on February 15, 1961 and did not remove the Receiver, against which order, the present appeal No. 227 is directed. 16. MR. Amarendra Mohan Mitra, the learned Advocate appeared on behalf of defendant No. 2 (Prafulla) in support of the appeal. We must record that be advanced very powerful reasons for preferring his view. He took great pains in supporting his case, on the mass of details from the records, greatly supported by his junior. Mr. Pritish Roy, the learned Advocate ultimately appeared for the plaintiff alone, who is respondent No. 1. He supported the appeal after taking a release in respect of the other respondents being Nos. 3 to 6 and 8 to 9. Mr. Ashutosh Ganguly, the learned Advocate, appearing on behalf of the defendant No. 1, namely, promode (respondent No. 2), stated in his opening that though he would not contest he appeal, he however later made it clear that he would not express any opinion, about the removal of the receiver. But we found that at the time of the argument, Mr. Ganguly actively helped the learned Advocate for the receiver all along and necessarily his argument became remarkably unexciting, as it meandered sluggishly through a number of unrelated issues. The learned advocate, appearing on behalf of Pabitra's widow (Sm. Nirupama), respondent No. 3, stated that he had instructions to oppose the appeal, but it appears that Pabitra (original defendant No. 2) filed an application before the Trial Court, for the removal of the receiver and it was recorded by the learned Subordinate judge that he joined the defendant No. 3 (appellant herein) for such removal. It is difficult to follow as to how the lady after being substituted, can now go against the pleadings of her deceased husband after accepting the same and take a stand contrary to that, taken by her husband before the Trial Court and join the Receiver in this Court. The appeal however was seriously opposed by the Receiver through his learned Advocate, Mr. Arun Prakash Chatterjee. The appeal however was seriously opposed by the Receiver through his learned Advocate, Mr. Arun Prakash Chatterjee. His speech was polemical. He spoke generally, argued elaborately but it became as futile as medieval argument about realism and nominalism. It cut no wood. He offered intermittent veiled criticism of the inactivity of the trial Court on different points; he allowed the Receiver, (on odd queries)who was present in Court during almost the whole of the hearing, to gel the better of him, which at the end rapped Mr. Chatterjee. 17. THANKS to the candour of the Receiver, when he made it clear before us through Mr. Chatterjee, that he is not willing to give up the office of the receivership. The Receiver's modesty at times seems exaggerated, sometimes breast-beating and that may be the measure of the struggle within him. 18. THE record is heavy with the lodged affidavits, the proceedings are elaborate and the hearing is prolonged. It is a singularly complicated appeal on facts. Before I come to examine in detail the several allegations against the Receiver for his removal, Mr. Chatterjee made a grievance that all the specific charges were not in the original application, but most of them were in the reply filed before the Trial Court and some were made for the first time in this Court. Mr. Mitter however stated that he would not press a single charge which was not borne out by the record. He filed certified copies of certain papers from the record in the suit in support of his allegation. On the Receiver's prayers, we gave him opportunity on different dates of hearing, to explain by affidavits, which he did. He filed statements of Accounts and the Pass Books of some of the Banks dealing with his accounts as Receiver, which we accepted. We also received some of the Title Deeds in respect of the disputed property filed by him but could not accept his Diary, as we were not satisfied about its relevancy for the purpose of this appeal. The Receiver filed Cash Books, copy of letter, a receipt for Rs. 10,000/-, a copy of the auditor's report (the original of which could not be found out from the record) and a few counter-foils of the Dividend Warrants in respect of certain shares. The Receiver filed Cash Books, copy of letter, a receipt for Rs. 10,000/-, a copy of the auditor's report (the original of which could not be found out from the record) and a few counter-foils of the Dividend Warrants in respect of certain shares. He also filed three lists in 3 pages showing the names of the said several Companies including those whose addresses were not known to him, the elates of receiving dividend from some of them and the names of the Companies which did not pay dividend, the dates on which the Receiver started the correspondence with them etc. Accordingly we cannot see it, at any rate, as a genuine grievance of Mr. Chatterjee and as a matter, which ought in any way to influence the outcome of this appeal. Can it also be said under these circumstances that the Receiver is prejudiced - I apprehend not. 19. ON April 22, 1966 Mr. Mitra for the appellant files an application for reception of two printed balance sheets of Jupiter General Insurance Company for the years 1960 and 1962 as additional evidence, in order to show that the statement made by the Receiver in the said list to the effect that the said Company did not declare dividends - was a false one made to this Court, whereas the dividends were in fact declared from the year 1958. That was just unfortunate from the point of view of the Receiver, but I am not resting my decision on this, though Mr. Chatterjee had to admit weakness in the Receiver's said statement. 20. I turn then to consider the several allegations made in support of the removal of the Receiver, one by one. First of such allegation is that the Receiver had not deliberately taken possession of the disputed properties in pursuance of the writ and he had not taken appropriate steps for their preservation. A formulation which invites the inquiry into both the classes of property. 21. MOREOVER, the law on the Receiver's duty of taking possession has been forgotten, not only by the Receiver but also by the Court below. A formulation which invites the inquiry into both the classes of property. 21. MOREOVER, the law on the Receiver's duty of taking possession has been forgotten, not only by the Receiver but also by the Court below. True it is not always necessary that a Receiver should take immediate possession but the general duty of the Receiver is not discharged by not taking possession of the subject-matter of the dispute, even up to the hearing of this appeal that is more than seven years after his appointment and by not doing all the acts of ownership, though directed by the Court both at the time of his appointment and thereafter. 22. MR. Chatterjee for the Receiver submitted that the parties themselves are to blame for this. As all of them are guilty, the law should not be enforced. A novel argument, I confess to me, but others might have greater experience. Mr. Chatterjee further submitted that the parties are claiming exclusive interest in some of the movables. But the law there also is, that when a party is asserting his title and exclusive interest without bringing an action at law and without having obtained leave of the Court, he would be enjoined to make over possession of the movables, regardless however clear his right may be. If he thinks that he is prejudiced by the appointment of a receiver, the proper course for him would have been to apply to the Court for setting that aside, as was done by the defendant No. 1 but did not succeed over the appointment of the present Receiver. That however, is no ground for the Receiver to keep quiet and not to take any steps for recovery. I may lay down the further law that it is not open to any party to question the orders of the Court or any writ issued under its authority, by disobedience. While the orders exist, they must be obeyed. For the due administration of justice, it ought on all occasions to be inflexibly maintained. The Trial Court should not have allowed its officer not to do his duty. It is an idle distinction that the rule only applies to the property actually in the hands of the Receiver. 23. While the orders exist, they must be obeyed. For the due administration of justice, it ought on all occasions to be inflexibly maintained. The Trial Court should not have allowed its officer not to do his duty. It is an idle distinction that the rule only applies to the property actually in the hands of the Receiver. 23. I require and insist that the party or parties should have applied and must at least now apply to the Court, for permission to retain possession of any movables or immovables of which the Receiver is directed to take possession. The fact of the party's possession does not give him the privilege to interfere with the Receiver, directed to take possession of the property. 24. THE Trial Court should not also have forgotten that it was the first duty of the Receiver to collect the assets. If a party to the suit who has possession, refuses to deliver up the movables, the receiver might have proceeded against him or them or could have acted according to the direction of the Court. But the Court was not moved by the Receiver in that way. Rather in the instant case, though the parties have not deliberately delivered up the possession of the movables, valued at more than 5 lakhs of rupees, the Receiver became callous and did not proceed against them, except service of a registered notice on the parties. After he submitted his first report on 23rd October 1958, the next report regarding movables, was not made to the Court by the Receiver before 25th of February 1960. It was weakness and inefficiency rather than credulity of the Receiver, that had rightly invited this attack. The charge is well-founded. A receiver should wake up to the fact that the voice that counts is the voice of strength. Weakness is the greatest sin. 77. The learned Subordinate Judge, to the disregard of the tough stuff of judicial statesmanship, absolved the Receiver of the charges, shifting the blame wholly on the appellant, for not producing any paper from the Bank. It is clear that the Receiver intentionally made false statements not only before the Court below but also in this Court, to cover up the charges. Wo take this very strongly. 25. THE purpose of the receivership it is true, is to preserve the fund but not to retain it for the Receiver's personal use. It is clear that the Receiver intentionally made false statements not only before the Court below but also in this Court, to cover up the charges. Wo take this very strongly. 25. THE purpose of the receivership it is true, is to preserve the fund but not to retain it for the Receiver's personal use. Even, if such fund remains in the hand of the Receiver for a short length of time a proper investment of the same is expedient. That is also not done in the instant case. The law must guard those funds with great jealousy. The Receiver would therefore be personally liable for every loss which might happen by reason of his acting without or beyond the writ. No Receiver is to be allowed to make a profit out of the property he handles. The fund in the hand of the Receiver is always regarded as a fund in the custody of the Court and as such it is always his duty to let the Court know the actual condition of the fund, which the Receiver in the present case failed to do. 26. IT is the law that a Receiver has got a direction and possibly the Court below was thinking of Plato's vexing problem - law vs. discretion. Though it is still, with us all, and language has not been found, either here or abroad, to separate both by a line that will not bend, as regards the accounts, the discretion of the Receiver is not the limit of the expenditure and he is amenable to the Court's judgment as to the necessity of the expenditure. The correctness of the expenditure should be made to appear from something more than the statement made in the report itself. I see in the complete inaction of the Trial Court, when the Receiver's grave dereliction of duty was brought to is notice, a failure to appreciate the extreme seriousness of what the Receiver had done. I See also the same want of appreciation in readiness of the Trial Court to protect the Receiver and condone his unauthorised retention of the estate fund. In truth, the action, of the Receiver fully acknowledged, and neither explained nor excused, amounted to a breach of duty as serious in character as any that can be committed by an officer of a Court. In truth, the action, of the Receiver fully acknowledged, and neither explained nor excused, amounted to a breach of duty as serious in character as any that can be committed by an officer of a Court. It ought not to have been overlooked to any degree, by the Court below which should have been jealous of its responsibility for the action of its own officer. This is now so well-established that I need not refer to, in details, the decision of the Judicial Committee of the Privy Council in the case of (1) Mr. Nag Kuer v. Sham Lal Sahu and others, AIR 1925 PC 257. 27. IT is our definite opinion that the Receiver acted in bad faith and committed a breach of his obligations. He has been guilty of neglect and mismanagement. It is not casual, accidental or unintentional, and not anything other than willful. There is every possibility that the use of the funds of the estate was for the Receiver's personal business for which his remuneration is liable to be forfeited. Regarding the charge of non-realisation by the Receiver of Estate fund his Lordship held : 28. WHEN the Receiver exceeded the limitations, might be through inadvertence even, the Court should not good-naturedly ignore such a transgression. The charge is well-established. Strike the facts from 25.3.61 ; even then there is no ground for the change of the decision. In dealing with the charge of nonpayment of estate fund of the parties his Lordship remarked : it seems to us that the plaintiff was persuaded by the Receiver to file the said later application and his mouth was attempted to be shut. The reason is simple, namely, that the plaintiff is to look to the Receiver for his monthly allowance and all other expenses as a widespread proverty is created in the land of plenty. It is clear, therefore, that the Receiver is guilty of this charge. The further charge arising from it, namely utilising the estate money in his hand for short term investment for his personal gain, after making false entries showing payment, though not making the full payment, is also justified as will be evidenced hereafter. On the Receiver's report, his Lordship observed : 29. IN my view it cannot be regarded as a suitable or any answer to the specific charge. It appears to me a sugar coating. On the Receiver's report, his Lordship observed : 29. IN my view it cannot be regarded as a suitable or any answer to the specific charge. It appears to me a sugar coating. The Receiver generally used to write undefined terms of calculated vagueness and his zeal for uncertainty collides with the principles of wisdom and justice. His approach was coldly cerebral. He has not only no generous heart to be responsive to those who excite a sympathy but the parties' deep distrust was reflected in their bitter criticism of the report. 30. THE learned Subordinate Judge should not have been carried by the report of the Receiver. True to the faith upon which justice ultimately rests, the learned Subordinate Judge placed a heavy strain on the agencies of stability, when he left it to the Receiver completely the onus of building standards in the vacuum of uncertainty and doubt. There is therefore no escape from the conclusion that the Receiver was in the habit of utilising the estate fund for his own purpose even for short periods presumably for his personal gain. The Court below suffered from confused thinking and the confusion begins with the said sum of Rs. 5000/- first dealt with, which the Court did not touch at all. Regarding traveling expenses made by the Receiver, his Lordship said : 31. THE reply by the Receiver as well as the reasoning of the Court below sounded well but the desk work theory is not measured by the facts in this case and the principle of justification of expenses on the ratio of collection, applied by the learned Subordinate judge is not accepted by the same old pragmatic genius - the conscience of the reasonable man. 32. IT is therefore fair to record it to be the Receiver's obstinate disregard which was impressed with the permanent characteristic arising from his settled intention and which he implemented in this way. It seems that he was greatly taken with the Police Court and other Courts and the residence, chamber and the office of different lawyers, against, some of whom the parties have their grievance. Regarding deposit of an amount by the Receiver his Lordship stated : To a further question, mr. Chatterjee states that his client does not remember the source of the amount. Regarding deposit of an amount by the Receiver his Lordship stated : To a further question, mr. Chatterjee states that his client does not remember the source of the amount. The Receiver who was present in Court, looked as black as thunder when this question was put. 33. THE learned Subordinate Judge did not refer to this objection in his order. But it gives us an impression that the Receiver dealt with the Bank Account and the Estate fund as carelessly, as men did, when the world young. I need hardly remind those who accept the Receivership, that is not within the competence of the Receiver to behave in this fashion. Regarding misappropriation of estate fund and false entries in account by the Receiver, his Lordship opened the discussion by saying. 34. THIS ancient charge has been a major thread in the fabric of the Receiver's removal. and concluded : The Receiver is accordingly hold guilty of this charge. It did not leave any room for doubt. The Receiver should have fall-on back on the accepted value viz., the common sense. On the charge of removal of Court Records by the Receiver his Lordship observed : 35. THE Receiver however produced before us. sometime later from his pocket, the original order of the learned Subordinate Judge, recorded on an application, giving the sanction of the said sum of Rs. 300/-. On the charge that the Receiver made personal gain from the Estate funds his Lordship held : 36. WITH all doubles as to what lessons history teaches, few seem hazier than the conclusion which have flowed from these facts is, that the Receiver is guilty of these charges. It further seems that he had been allowed by the Trial Court to enjoy power, even, more merrily than in the beginning of his appointment. To allow him to continue for long, is to take a too great risk. One of the main charges is that the accounts had been kept by the Receiver in such a way that it is beyond the Court's power to find out the correct state of affairs as regards the finance of the Estate. It is a piece of confusion deliberately made. The first grievance is that the Receiver's accounts do not show the dates when the cheques for the dividend warrants were received by him from the respective Companies. It is a piece of confusion deliberately made. The first grievance is that the Receiver's accounts do not show the dates when the cheques for the dividend warrants were received by him from the respective Companies. Secondly, the balance struck in the accounts filed, do not tally with the bank balance. Mr. Mitter's attack on this point was not only critical but was merciless vigorous and effective. He submitted in argument that the appointment of the Sheristadars of a Court, by the learned Subordinate Judge, to check the Receiver's accounts, is another factor allowing this confused state to continue. Mr. Chatterjee appearing on behalf of the Receiver spoke generally denying the allegations and made a speech offering veiled criticism on every body including the Auditor and lastly laid the blame on the Court. 37. IT appears that the learned Subordinate Judge did not take this charge into serious consideration, as he thought it to be a trifling matter. Therefore he merely directed the Receiver to mention "henceforth in his account," "the date of the receipts of the Cheques by him. " We would deal with this charge into two parts. Firstly, whether the appointment of the Sheristadars by a Court as an auditor was justified and whether his directions were followed by the Receiver and secondly, the defects in the account itself. 38. BY order No. 155 dated May 7, 1960, the learned Subordinate Judge suo motu appointed the Sheristadars of the District Judge as the auditor. It has been suggested on behalf of the appellant without any reserve, that the position of the Sheristadars of the District Judge in relation to the Subordinate Judge within the same District was one: of considerable influence and the sheristadars was thus enabled to obtain an exparte order of appointment in his favour. It is not necessary for us to express any opinion upon the truth or otherwise of the imputation so made, but we must record our opinion that it is neither expedient nor should it be made a rule to appoint the Sheristadars of the District Judge as auditors for checking the accounts particularly of an involved accounting of the Receivers, appointed by the Subordinate Judicial Officers of the same District. It is not a matter of surprise therefore that such audit-reports have been allowed to be repeated without the care and circumspection which the necessities of the case demanded on the part of both the Auditor and the learned Subordinate Judge. The Sheristadars-auditor's investigation and Reports appear to have been of the most perfunctory character. He seems to have contented himself with what is called 'checking' but there is no real determination of the matter as required of an auditor. The felicity and freeness with which exparte orders were passed, without any enquiry, in most of the instances, do invite comment that the learned Subordinate Judge did not exercise even ordinary care and control. The audit reports of the Sheristadars in this case did not provide the basic material for the Court's review, as he did not check the correctness and classification of expenditure and did not make the examination and make more minute enquires as to whether they have been incurred in conformity with the prescribed rules and regulations and in accordance with the sanctions of the Court. He did not bring into focus all the waste and extravagance, the incorrect or improper exercise of administrative responsibility of a Receiver in financial mailers. The Sheristadars did not and could not exercise his wisdom, faithfulness and economy. In extending the examination of the accounts filed by the Receiver, because it is a technical examination best undertaken with the knowledge and equipment which an accountant possesses and which the Sheristadars of a Court cannot have. In the absence of such a review, the Court is not possessed of the material on which to assess the total performance of the Receiver, in the entire field of financial administration. Though it is clear that the parties have not been used to influence some of the recommendations, the Sheristadars-Auditor has made, against the Receive, he should have been more critical of the Receiver's financial administration, as any major lapses would, if unchecked, undermine the position of the Court as it haw actually been done in this case. Sheristadars is liable to forget, that the Receiver, particularly a lawyer in. the same Court, is an acting hand of the Court. 39. MR. Sheristadars is liable to forget, that the Receiver, particularly a lawyer in. the same Court, is an acting hand of the Court. 39. MR. Mitter drew our attention to the well-known general principles (though they do not decide particular cases), laid down by the Division Bench in the case of (2) Mohini Mohan v. Ram Narain, 14 CLJ 445 and pointed out that, the Single Bench decision of this Court in (3) Coomer Satya Sarkar v. Ranee Golapmonee, 5 CWN 223, on which some reliance was sought to be placed by Mr. Chatterjee was duly considered and explained in the said later Bench decision. 40. I am of opinion that the appointment as a rule of a Sheristadars, particularly of the District Judge's Court as an auditor, appointed by the Subordinate Judge of the same District, to check the accounts of a Receiver, a lawyer of the same Court, should better be avoided and the Rule to that effect, if any, might be, for all its vaunted realism, hypothetically possible but it should not be allowed to carry actual and multiple burdens of an audit, because it is obvious that a segment of a common thread would likely to continue even within the insulated chambers of the Sheristadars and the lawyer Receivers of the same Court. We hold that the appointment of the Sheristadars an auditor in the instant case is not at all justified and his audit reports are not to be treated as final and conclusive. We are told and are glad to note that a Chartered Accountant is appointed as the Auditor for the last two or three years. 41. WE regret to find, on the other hand, that the directions of even the Sheristadars-Auditor, initially seeming adequate to outlaw the old mistakes, were not followed by the Receiver in the instant case. In the auditor's report on 28th May 1960 (pages 25 and 26 of the Paper Book), it was noted that certain dividend warrants were not produced before him because they were reported, to be not available. The Receiver was directed to "produce dividend warrant and the letter accompanying such warrant in respect of each item of realisation on account of dividend in future". The Receiver was directed to "produce dividend warrant and the letter accompanying such warrant in respect of each item of realisation on account of dividend in future". In respect of all the properties of the Estate both movable and immovable, appearing from pages 15 to 94 of the plaint Schedule, the auditor directed the Receiver to "submit a statement in respect of the properties both movable and immovable which are being administered by him". The Receiver filed an incomplete statement, i.e., as regards the shares only, but not with respect to the other innumerable movable properties some of which are referred to in the beginning of this judgment or any immovable property. Mr. Chatterjee could not satisfy us that the said position is incorrect. 42. IT might further be noted that the appellant made an application on August 30, 1960 (Paper Book page 27) praying for inspection of the Bank Pass Book or Books of the Estate and for direction on the Receiver to furnish with informations, specifically stating therein that there is no entry by the Receiver, in his account as to when the dividend warrants were deposited in the Bank or Banks and the number of shares and the period for which the said dividend warrants were received. The said application was allowed by order No. 178 but it does not appear that the Receiver did carry out the said order. The learned subordinate Judge did not notice all these. He should have done well to remember that his order would be meaningless unless he exercised his means at his disposal to ascertain whether the order of the court had been scrupulously honoured by the Receiver. Even after passing the order appealed against, Mr. Mitter, pointed out by way of examples, that on July 25, 1961 the appellant made an application but no order has yet been passed on the same. The auditor's report dated March 4, 1962 (record pages 138 and 139) though records that the Bank transactions have not been shown by the Receiver and that the Receiver did not mutate his name in the records of the several Companies and accordingly the rebate was lost to the estate, no action was taken by the Court below. 43. THE auditor's report dated March 22, 1962 though records that no receipt was produced ; that the interest to the extent of Rs. 43. THE auditor's report dated March 22, 1962 though records that no receipt was produced ; that the interest to the extent of Rs. 96/- was forfeited by the Bank for withdrawals for more than once in a week and further that the Receiver had acceded to the plaintiff's request and spent a sum of Rs. 55/ - as typing charges on January 13, 1962, as stated in his account, which was not to the interest of the estate, the matters were allowed to rest there. We are not however bringing our decision on these Reports etc or on the orders from or after July 25, 1961. 44. BALANCE as shown in the bank account, does not tally with the balance shown by the Receiver in his statement. Mr. Chatterjee takes objection that some of these points including this one, were not taken before the Trial Court and Mr. Mitter should not be allowed to take such exceptions for the first time in this Court and the matter should be remitted to the Court below for enquiry as to this charge. Mr. Mitter, however, submits that when the bank accounts were purposely withheld by the Receiver before the Trial Court and as they are now before this Court and as he would not contend anything which is not borne out from the admitted reports and particularly as the Receiver has got sufficient notice in this Court to explain the charges and as there would be no new facts on which he would rely, it would in our view, be futile and sheer waste of time to ask the Trial Court to go into this charge in a fresh enquiry and to record a finding thereon and thereafter to send the same up to this Court. We see the force in Mr. Mitter's submissions and we go into the matter straightway as the Receiver got sufficient opportunity to explain. 45. MR. Mitter for the appellant submits that if any person inspects the records, (particularly pages 872, 882 and 894), when the Receiver filed his statements of accounts for the periods ending February 1959, May 1959 and November 1959. he would see that the balance struck there, do not tally with the balance as appearing in the bank accounts filed in this Court. 46. MR. he would see that the balance struck there, do not tally with the balance as appearing in the bank accounts filed in this Court. 46. MR. Chatterjee in spite of his best attempts could not explain as to why the balances do not tally. He however fell back upon the principles laid down by Sale. J. sitting singly, in the case of (3) Coomar Satya Sarkar v. Ranee Golapmonee, (supra), and in a Bench decision in the case of (4) Subal Chandra v. Jatindra Mohan, ILR 53 Cal. 881 and contended that such enquiries should not be gone into a summary procedure like the present one but it should be done by a regular suit. Mr. Mitter at once pointed out, and in, our view rightly, that the aforesaid two decisions were considered and explained by a later Division Bench of this Court in the case of (5) Sarfaraddi v. Rahim Baksh, 47 CWN 400 where the identical submission was not accepted. I respectfully agree with the reasoning's given by B. K. Mukherjee, J, (as his Lordship then was) who led a unanimous Court, On the principles laid down therein I hold, that a separate suit is not the only remedy where a Receiver is sought to be removed on the charges of willful default and gross negligence and I further hold that it is quite open to the Court, which appointed the Receiver, to investigate the matter in 9. proceeding like the present one, as it had jurisdiction to deal with such enquiry. I may add that the said decision in (3) Coomar Satya. Sarkar's case. (5 CWN 223), arose, on section 503 of the Code of Civil Procedure of 1882 (when rule 4 of order 40 of the Code of 1908 was not there) and again on a different set of facts which decided the question, of passing of the accounts and not the removal of the Receiver. In (4) Subal Chandra's short decision, Rankin, J, (as his Lordship then was) besides considering the Original Side Rules and the long practice in the Court, which is not the case here, pointed out at page 884 of the said Report ". . . . . . . . In (4) Subal Chandra's short decision, Rankin, J, (as his Lordship then was) besides considering the Original Side Rules and the long practice in the Court, which is not the case here, pointed out at page 884 of the said Report ". . . . . . . . their application seems to be not without a good deal of complication and to nave a good deal of material which requires a very thorough sifting" - for which it was not possible to be dealt with in the said application. In my opinion, all procedures are not odious but the broader principle is that they must be applied so as to work justice and not injustice. I think that this point may also be decided with this overriding consideration in mind. Justice does not require the invocation of the doctrine to protect the defaulting Receiver. The arm of the Court is long and strong enough to prevent the abuse if its power made by such of its officers. 47. THE Receiver defaulted in not passing accounts. The Trial Court, on the other hand, was not disposed to hold the Receiver to great strictness in rendering his account and having the same passed. 48. THE Receiver could not convince us that on account matters, he was prime facie in the clear. It is no doubt true that it would be no part of our business to concern ourselves with what the Receiver did with his personal money. But there is no justification about the Receiver's keeping the account in the way it was maintained. It must be noted, not without regret, that he did not at the beginning place before us the bank accounts and the financial dealings, very frankly. We have reasons to doubt the pecuniary motive that has been suggested. Though I am not an expert accountant, the following further defects are apparent. No account would be said to be authentic, unless assets in connection with that account and liabilities therefor, are attached with the account, which has not been done in this case. Only receipt and payment accounts have been submitted by the Receiver, every three months, but no comprehensive picture could be arrived at without yearly accounts. No account would be said to be authentic, unless assets in connection with that account and liabilities therefor, are attached with the account, which has not been done in this case. Only receipt and payment accounts have been submitted by the Receiver, every three months, but no comprehensive picture could be arrived at without yearly accounts. Receipt and payment accounts only denote the actual receipt and the actual payment but that can never reflect the real state of affairs of the Estate, unless the total income, (whether all of them were realised or not) and the total expenditure (whether all the expenses were made or not), are considered, the account representation must be faulty and on such accounts no conclusion could be arrived at and no reliance should be made. 49. IN the expenditure side no differentiation had been made by the receiver between the capital expenditure and revenue expenditure and in the receipt side, the capital receipt and revenue receipt had not also been divided. His traveling expenses even for the same distance vary disproportionately and the amounts charged are not supported by proper authentication. 50. ALL the incoming cheques are recorded on the receipt side of the Cash Book but those were not sent to the bank by writing those on the expenditure side of the said Cash Book. Necessarily the cash in hand as per Cash Book is being enhanced to the tune of the cheques entered on the receipt side. Therefore the Cash Book becomes entirely unreliable. From the Cash Book, again no reconciliation of the bank account could be possible. When lump sums such as Rs. 40,000/-, Rs. 30,000/-, Rs. 20,000/- were sent to the bank, those were sent after recording those transactions in the Cash Book. But we could not know from the mode of keeping of the Cash Book in the above fashion that whether on those particular dates, the above sums, which were sent to the bank, were actually in cash in hand or not. 51. BANK interest had not been considered in the account at all. 52. FIXED deposits and short deposits appear to have been made from the Bank Accounts but those were not [passed through the accounts filed by the Receiver. The interest received from those deposits were not at all credited. 51. BANK interest had not been considered in the account at all. 52. FIXED deposits and short deposits appear to have been made from the Bank Accounts but those were not [passed through the accounts filed by the Receiver. The interest received from those deposits were not at all credited. From the list of shares filed by the Receiver, noticed at the beginning of the judgment, it will be found that the dividend declared and realised could not be reconciled in some cases. For example, in the case of Hindustan Motors Limited, in spite of their declaring the dividends at the rate of 5 per cent for 1955, 9 per cent for 1960 and 12 per cent for 1961 appearing from the Stock Exchange Books and though the shares thereof were being held from 1958, the dividend was only shown to have been received in the year 1961, and not earlier. Similarly in the case of Birds Investment Limited - dividend at the rate of 11 per cent was declared for 1959, 9. 5 per cent for 1960 but the first dividend was shown to have been received in 1961. 53. FROM the above it has been suggested that the dividend received have not always been deposited or immediately deposited and necessarily the recipient Receiver might have utilized those funds for his own benefit during the period of non-accounting of them as above, Mr. Chatterjee for the Receiver submitted that this is in part, exaggeration but few, in our opinion, could deny its germ of truth. 54. THOUGH we have seen a good part of the record and considerable evidence in this case, a more thorough investigation Is necessary. We have a suspicion that the financial condition of the estate would have been much better if the Receiver would have cared to put the Estate on a sound footing. The deterioration was the result in a great measure of willful default of the Receiver. The task of the Court was made extremely difficult, if not impossible, by the complete lack of co-operation of the Receiver, in not making a full disclosure of the dates of (he receipts of dividends of each Company, he reported to dilatory tactics and pleaded at every stage that he could not give any definite information. The task of the Court was made extremely difficult, if not impossible, by the complete lack of co-operation of the Receiver, in not making a full disclosure of the dates of (he receipts of dividends of each Company, he reported to dilatory tactics and pleaded at every stage that he could not give any definite information. We note with displeasure that all the papers with him, were not filed by the Receiver, either before the Trial Court or before us, and we could not verify various other charges, many of which are serious. We also note that the other papers were only casually shown to us and that with reluctance, It is further submitted on behalf of the appellant that the earnings of the estate, reported from time to time, did not tally with remittances or expenses. The discrepancies remained unresolved by and large. It is painful that such a state of affairs would be reflected in the account of the estate maintained by the Receiver, who is an officer of the Court. 55. IN my view the genesis of the receivership lies in the accountability to the Court for its financial administration. If the accounts are not maintained with approved form, it gives the parties occasion to roam over the entire field of administration and to pillory the receiver for his alleged lapses for which he alone is responsible. 132, We reiterate that the Court's examination of the accounts is no leys an important instrument of control. In a sense it is more important ; it is designed to prevent the receiver from using the funds obtained as he likes in violation, of the Court's categorical and specified sanctions. 56. AS the Court cannot have the necessary time for the detailed examination of the accounts and as the accounts submitted by the receiver should be more thoroughly investigated and examined by an expert accountant, we direct the Trial Court to have them done by a Chartered Accountant, who is already appointed or by a new account, at the discretion of the Trial Court, The Auditor's Reports already filed and the statements of accounts filed by the Receiver must be taken into consideration at the time of passing his accounts. Mr. Neogi, if he is so adviser, may file fresh statements and give further explanations. Mr. Neogi, if he is so adviser, may file fresh statements and give further explanations. Opportunity is given to the parties in suggest lines of enquiry and the possible questions to Mr. Neogi with the permission of the Court below. The auditor, should be entitled to participate freely in the examination of any witness, if the parties so desire and if thought necessary by (he Court to so examine, including Mr. Neogi, the receiver. The Sheristadars-auditor and the accountant auditor if necessary, should be allowed to intervene to clarify points, to elicit information material to his report if any witness tries to cloud an issue by raising irrelevant points to sidetrack the main line of enquiry. The Trial Court must intervene if the examination, tended to go off at a tangent. The auditor would have powers to send for papers, persons and documents and to record evidence on all matters coming under his consideration - subject of course to the full control of the Court. The parties would be entitled to ask the Receiver any question that has a financial bearing or on receipts and expenditures recorded in the accounts under examination, whether they are mentioned there or not. These directions have not been given in the sense of punitive authority but they are mainly concerned with the question of seeing that the interest of the parties in the litigation in respect of the estate, is safeguarded in the future and a high standard of efficiency is maintained by the Receiver, at least in all financial matters. The Court must concern itself, if there is a lacuna in the system of accounting, which has occasioned loss to the parties. All the original files and the papers must be filed by the Receiver and made available to the Auditor and to the Court, for scrutiny before passing the order for discharge of Mr. Neogi. 57. I remind that this is one of the interesting features of the whole system of financial administration and it is the crowning point of that system which the Receiver should have realised and I hope that the new Receiver whom we are going to appoint would be able to establish traditions and develop conventions which conform, to the highest standards. I remind that this is one of the interesting features of the whole system of financial administration and it is the crowning point of that system which the Receiver should have realised and I hope that the new Receiver whom we are going to appoint would be able to establish traditions and develop conventions which conform, to the highest standards. There is no reason for us to doubt that the Trial Court now would ensure that its officer's impersonal and objective image abides for all times to come. 58. AS errors have been discovered in the accounts the principle is well-settled that even if the Receiver's accounts have been filed and vouched, they can be reopened on such a discovery. The further law is that the Receiver is responsible not only for the actual sums received by him but for those which might have been received by him but not received for his willful neglect and default. For this he might be surcharged on his accounts. After all the papers are filed by the Receiver, opportunity is given to the parties to file fresh objections to the accounts. When it is found that the Receiver has made a loss caused to the estate by breach of his duty, he would be bound to make good the said loss. The Trial Court would not discharge the Receiver till all Mr. Neogas accounts are filed and passed by the Court, the Receiver world be discharged only when He was absolved from all liabilities. 59. IF ultimately it is found that the Receiver is unable to make good the loss, the Court would be at liberty to proceed against him under the provision of order 40, rule 4 of the Code of Civil Procedure. Needless to direct that if [necessary, the amount might be recovered from the security given by him. Even that be not sufficient, the liability might be liquidated by selling the receiver's other personal properties. But it must be clearly borne in mind that the loss so occuring must be traced to the Receiver's neglect. If he can however satisfy the Court that he had acted with perfect regularity and had used such a degree of prudence as would be expected from a private individual in relation to his own affairs, the Trial Court would certainly exercise his discretion in fixing the liability. 60. If he can however satisfy the Court that he had acted with perfect regularity and had used such a degree of prudence as would be expected from a private individual in relation to his own affairs, the Trial Court would certainly exercise his discretion in fixing the liability. 60. WE make it clear that we have not examined the accounts of the Receiver as an auditor and we have not as-curtained his full liabilities. We have only found the defects, serious irregularities and the laches and lapses of the Receiver in his accounts and therefore we have held him guilty to the charts and have given the above direction to the Trial Court. There is some evidence in this case to show that the Receiver somehow got into his head the idea on misconception of law that he had no obligation to inform the parties as to the accounts. The allegation is that during the relevant period the Receiver was in collusion with the defendant No. 1. It was denied by the Receiver. His answer is that the defendant No- 1 is in cooperation with him. Mr. Muter pointed Out that over and above the payment of Rs. 15,000/- to defendant No, 1 alone and the accommodation shown to defendant no. 1 as noticed in paragraph 92 above, the Receiver even charged traveling allowance on August 9, 1960 for discussion with defendant No. 1. 61. FROM the foregoing discussion under several heads and on consideration of the whole of the situation 1 reach the conclusion, that the charge of collusion against the Receiver is justified not only with defendant No. 1 but also with some of the parties at times but in varying degrees. On matters, not incomplete and obscure, we can see the remote control by the defendant No. 1, of the estate funds, through the Receiver. It seems that after the first fight by the Receiver, just after his appointment, there is a very close cooperation and prolonged affair with regard to the sum of Rs. 22,000/- lending to collusion between the Receiver and the defendant No. 1, They worked together in harmony and each had fuller confidence in the other. A common understanding between them still exists, It is usually overtaken on the surface by the broader principle of etiquette in the bar, so frequently expressed in the Courts. 22,000/- lending to collusion between the Receiver and the defendant No. 1, They worked together in harmony and each had fuller confidence in the other. A common understanding between them still exists, It is usually overtaken on the surface by the broader principle of etiquette in the bar, so frequently expressed in the Courts. Though continuing as a legal entity, the Receiver became an empty shell in the bands of the defendant No. 1. 62. IT is essential that the Receiver should be kept absolutely free from any influence of the parties and nothing should be cone which might lend a colour or to any suggestion that the Receiver is concerned with the interest of any particular party or with any other matter than the preservation and protection of the property as a whole. It is a matter of supreme importance and delicacy, namely that, the Receiver should maintain the well-established rule that the only guidance is to be sought from the Court and not from any party. By reason of his interest shown to a particular party or parties, the efficiency of the Receiver, as an officer of the Court, is impaired and though it appears that the learned Subordinate Judge did not touch line point, he would not have been unjustified in upholding the charge against the Receiver. 63. MR. Minor raised some other allegations against the Receiver which In my view bordered on rum ours. There was a heavy crop of rum ours which usually sprang from the facts that the Receiver had enough money in his personal account and that he was driving a motor car, even without having a lucrative practice in law. In connection with these rum ours again, more detailed rum ours were whispered, I may mention that most persons believe in rum ours which arise and spread like wild fire. Mr. Mitter raised an issue that when there was a great body of opinion to that effect, the allegation must be disproved by the Receiver or the Receiver must be removed. 64. WHILE I appreciate the significance of the opinion so expressed, I have felt unable to adopt it for the purpose of deciding as to whether he should be removed on such other allegations and on whom the onus lies. It seems to me to be most unfair to the Receiver concerned if I am to accept Mr. Mitter's contention. 64. WHILE I appreciate the significance of the opinion so expressed, I have felt unable to adopt it for the purpose of deciding as to whether he should be removed on such other allegations and on whom the onus lies. It seems to me to be most unfair to the Receiver concerned if I am to accept Mr. Mitter's contention. If it is put on a man, who is the subject of rumours, the burden of proving his innocence ; it would be a thing difficult enough for any man to do - entirely contrary to what I believe to be just. It is bad enough to require any one to meet a charge based on rumour. It would be worse still if the individual affected had to disprove a rumour that there is no evidence against him. I have not even endeavored to investigate such other allegations, reported to this Court, in accordance with those principles. I have deliberately refrained even from setting out the rumours for if I were to do so, then our investigation would be turned into a witch-hunt, parallel to the Macarthy Committee in the United States, where people would be condemned for past sins, which are better forgotten and forgiven. That would also be repugnant to law and justice. I would wish to leave the matter, merely by saying that: the rumours were not proved against: the Receiver and remained as rumours. I reject them therefore as utterly unfounded. 65. FOR the purpose of general principles as to the duties and liabilities of the Receiver, Mr. Chatterjee placed, paragraph after paragraph, from halsbury's Laws of England, Volume 32. He referred to the Treatises on Receiver by Woodroffe (6th Edn.) and by Kerr (13th Edition ). He contended that the Receiver's duty is finished and is limited only to the collection of the amounts actually made. A somewhat dangerous argument, I would have thought, for it seems to presuppose that he had no other duty. I reject it without hesitation. He further submitted' that it was not the Receiver's duty to find out the liabilities of the Estate in which he was appointed a Receiver. A most deplorable result might follow, which should be avoided unless the law compels that conclusion. Mr. Chatterjee's reliance on the stray sentences, bereft of the context, demonstrates a misconception on the law of duties and liabilities of the Receiver. A most deplorable result might follow, which should be avoided unless the law compels that conclusion. Mr. Chatterjee's reliance on the stray sentences, bereft of the context, demonstrates a misconception on the law of duties and liabilities of the Receiver. He was unable to tilt the mind of the Court in his favour, in order to make a difference. He also cited a decision in the case of (6) Rukmani v. The Advocate General of Madras, reported in 1916 MWN 10 : 31 1c 908, to substantiate the proposition that the onus is on the petitioner to prove the liability of the Receiver. Mr. Mitter does not controvert this proposition and submits that the petitioner appellant has fully discharged the same. 66. MR. Mitter next submitted that each copy of the application filed by the Receiver in the Court, need be served on the parties and that the order-sheet must contain all the orders and the record must not be removed by the Receiver without the Court's consent. In support, he relied on the provisions of Civil Rules and Orders, particularly rr. 21, 24, 246, 248, 253, 298 (2 and 4), 366, 372 to 375. Mr. Chatterjee refuted the said submission by saying that none of the Rules, specially Rules 246 and 248 (note 4 thereof) can be applied to the Receiver, as they are applicable to the Commissioner of accounts. Reading the said rule, we are of opinion that they are salutary and by parity of reasoning in the principles should be made applicable in the case of Receivers also, though in terms the said, rules might not apply. The last argument of Mr. Chatterjee fur the Receiver is that the appeal is not maintainable, According to him, from an Order of refusal to remove the Receiver, there is no appeal, Mr. Chatterjee relies on the decision in the case of (7) Surendra Nath Sarkar v. Nagar Chand Goenka, AIR 1947 Pat, 418, and (he case of (8) Kochu Kumar; v. Krishna Janardhan, AIR 1952 TC 248 . He also refers to a decision in, the case of (9) Anthony Ulysses John v. Arm United Mills Limited and another. AIR 1931 All 72. Mr. Mitter submits in reply that to deny a right of appeal, smocks of treating the appellant on a heads-1-win. tails-you-lose basis. He also refers to a decision in, the case of (9) Anthony Ulysses John v. Arm United Mills Limited and another. AIR 1931 All 72. Mr. Mitter submits in reply that to deny a right of appeal, smocks of treating the appellant on a heads-1-win. tails-you-lose basis. He them, in my view, rightly refers us to the provisions of Order 43, Rule 1 (s) and maintains that any order passed under Order 40. Rule 1 of the Code of Civil Procedure is appealable and not merely an order for appointment of a Receiver. His emphasis is on the word 'under' which makes the sing. 67. IN my opinion the answer is already given in the Bench decision of this Court in the case of (10) Nibaran Mitra. v. Prafulla Kumar Mitra, reported in ILK (1955) 2 Cal. 203, which held that the appeal was maintainable, with which we respectfully agree. The Courts did not move even a short way since the opinion, was expressed by the Federal Court in the case of (11)Hayarsppan v. Madhavi Amma, AIR 1960 FC 140, which decision Mr. Chatterjee wants us to distinguish, by saying that the appeal, preferred in the said Federal Court decision, was against the order of removing a Receiver and it was not against the order of refusal to remove a Receiver. Mr. Chatterjee however missed the useful observation of the federal Court in paragraph 81, right hand column middle, at page 141 of the said Report, which contain these significant words "this distinction (viz., that the order of removal and the order of refusal to remove) does not materially affect he question," The words in the bracket are mine. The Federal Court said that in one sentence no doubt, but that is binding. 68. I notice that one of the members in the said Patna Bench Decision was Mr. Justice Fazal Ali, who was also a party to the decision of the said Federal Court. I further notice that Fazal Ali, J, did not express any opinion in the in the Patna case. It also appears that the said Federal Court approved a decision of the Madras High Court in the case of (12) Ramaswami Naidu v. Ayyalu Naidu., reported in 47 MLJ 196 : AIR 1924 Mad. 614. I further notice that Fazal Ali, J, did not express any opinion in the in the Patna case. It also appears that the said Federal Court approved a decision of the Madras High Court in the case of (12) Ramaswami Naidu v. Ayyalu Naidu., reported in 47 MLJ 196 : AIR 1924 Mad. 614. We must hold therefore that the principle ]aid down in the said Patna decision in (7) AIR 1047 Pat, 418 and in the said Allahabad decision namely, (9) AIR 1931 All 72 is no Inoger good law, as obviously such a concept cannot be captured in a neat catchall rule of thumb. The said Calcutta decision in the case of (10) Nibaran Mitra, (supra), and the said madras decision on the other hand should hold the field, being approved by the Federal Court. The short of it is, and the history demonstrates the maintainability of such appeals and the convenient bench decision of this Court, in the case of (13) Sripati v. Sibhuti, reported in AIR 1928 Cal. 593, which also was approved by the Federal Court. The Editor of Woodruffs treatise on receiver, referred to the said Federal Court decision at page 158 (6th Edition) and noted that the question was set at rest. Unaided by any authority, I can see no reason in principle why such appeals would not be maintainable. I find the submission, that the appeal is not maintainable, is too difficult to sustain, though it is easy to miss the point; as little attention seems to have been paid to these forms of appeals. 69. AT the close of all these, if the question must again Be asked, on whom lies the responsibility for what occurred, the primary responsibility must of course rest with the Receiver. First, by his negligence and default of action and. secondly, and worse by telling lies ten the Trial Court, thirdly and gravest, by the falsity of his repeated solemn statements made before this Court. 70. NOW to summarise, the Receiver had neglected his duties. At times, he acted in bad faith. In many matters, he showed want of capacity to discharge his responsibilities, and at times, lack of appreciation of the same From the actual sequence of events, it is difficult to disentangle the Receiver from the charge of collusion with the parties. He did not remain unbiased and impartial. At times, he acted in bad faith. In many matters, he showed want of capacity to discharge his responsibilities, and at times, lack of appreciation of the same From the actual sequence of events, it is difficult to disentangle the Receiver from the charge of collusion with the parties. He did not remain unbiased and impartial. The Receiver's attitude did destroy his non-party character, rather distorted it form proper perspective. The Receiver had opportunities to scotch certain reports by his statements, but even then he failed. The instant case is not a case of an outlay by the Receiver in good, faith, in the roistering point might be found in the nary course, within the line of discretion, which is necessarily allowed to a Receiver, His dealings are not mere mistakes of judgment but they are intentional and deliberate, though the Court below gave the Receiver a good certificate. The Receiver behaved like a mere spectator in some of the important matters. In spite of the large latitude the Receiver has, in the matter of seeking advice and direction from the Court, he either deliberately kept the Court back from the knowledge and actual affairs of the Estate, or did not obtain the direction at all. He was neither cautious nor a prudent Receiver He made his position as that of a speculator in funds, constructively at least, because the destiny of the funds becomes uncertain after the funds reached his hands, dragging the Court itself to the position of a quasi - suitor, making it more difficult for the Court to protect its own officer from his personal liability. He has offset his personal claims on suitable occasions. He did not concur in the Court's result, rather he disregarded the Court's orders. The story of lack of co-ordination, by the parties in that regard, was well-exposed, He has not used his professional knowledge in executing the Receivership and he has allowed the fees to be paid to his lawyers in all cases and has not followed the principle of reasonable necessities in that regard. The traveling allowances charged, are not without comment. He did not pursue some of the matters even after imperative directives from the Court. He considered himself justified, leaving it to the parties to remedy the weak points in his administration. The traveling allowances charged, are not without comment. He did not pursue some of the matters even after imperative directives from the Court. He considered himself justified, leaving it to the parties to remedy the weak points in his administration. The Receiver seems to have caused loss to the Estate by his gross neglect and willful default. He made profit from his office. He did not invest the Estate funds. To guard against dissipation of the Estate property, he did not cause an inventory to be purposed and appraisement to be made, and he did not file a list of assets and a schedule of liabilities, not only not within a reasonable time from his appointment in 1958, but not even up to the hearing of this appeal in this Court. Non-direction by the Court in that regard, affords, no analogy in the case of a Receiver, he being himself an officer of the Court. He was callous. He did not collect the dividend of the shares of several companies and it might be safely assumed that the Receiver knew, what, it was happening. He did not keep any watch on the activities of the parties regarding the properties in, their possession. The whole incident was thought so unimportant by the Reviver that it faded completely from his mind. It was not merely the most unfortunate mistake which constituted reversible error. 71. THE Receiver did not account to the Court faithfully for all receipts and. disbursements. Ho allowed the Estate fund to be mixed up with his personal fund and via versa. Prima facie we are satisfied that the Receiver had very much in his mind the defects, irregularities and defaults in his accounts. We have a strong suspicion that some of the earnings of the Estate were siphoned off, even for a short period. The accumulations had not been converted in any securities. The Receiver failed to pay the taxes and charges in time. 72. THE Receiver kept even, the Court's papers with him and under his exclusive control, without the knowledge of the Court. He did not yet file all the papers and documents and did not carry out the directions in spite of the specific orders of the Court and the direct Reports of the Auditor, He did not show the Bank accounts end other papers to the parties, though ordered by the Court. He did not yet file all the papers and documents and did not carry out the directions in spite of the specific orders of the Court and the direct Reports of the Auditor, He did not show the Bank accounts end other papers to the parties, though ordered by the Court. The Receiver forgot that the documents in his hands are quasi-public in character and open to examination nor only by the Court hut by the persons interested in the Estate. For a pretty long time we had been dubious whether the Receiver was refilling the truth and he kept the matter in suspense. When he found that an order was going to be passed only then he promised the production of the Bank accounts. From stories told by the Receiver to the Court, he subsequently resiled. He assured the Court repeatedly that what he was saying was true, but it was ultimately found that he made untrue statements deliberately. We can never conceive that an officer of the Court would have the effrontery to make such false statements to the Court. 73. WE, of course do not follow the old English practice of some antiquity where the Receiver was not entitled even to hearing on a motion for his removal or discharge, the reasons being that he is art officer of the Court and is not interested in the appointment, except to carry out the duties of his office, in an impartial manner. But we find in the instant case that the Receiver is very much interested in his appointment and he frankly admitted as noticed earlier, that he wanted still to continue as a Receiver. He forgot the general law that he had no more right to object to his removal (of course, honorably) and discharge, than he had originally to insist upon his appointment, except for the purpose of protecting his individual rights. Though he was given a full hearing, ho should remember that it should neither be hi? privilege nor right to object to the removal or to insist on the continuance of his appointment and make any unnecessary content in the proceeding. The conduct of the- Receiver was such, as to create a reasonable belief in the mind of the parties that he had committed waste of the properly. 74. privilege nor right to object to the removal or to insist on the continuance of his appointment and make any unnecessary content in the proceeding. The conduct of the- Receiver was such, as to create a reasonable belief in the mind of the parties that he had committed waste of the properly. 74. THE Receiver however does not enjoy a wider measure of protection than is accorded to other accounting persons in a fiduciary position. The charges are sufficiently grave in nature. It is not a case of indifference or lethargy, tactlessness or simple default. It is a case of gross negligence, unspeakable callousness, thorough incompetence, open domination., vested manipulation, substantial mismanagement, serious misconduct, rugged individualism and proved incapacity. Mr. Neogi had I "no unique distinction in passing through the above tests and made himself fit to be removed. 75. WE are therefore satisfied, that the Receiver should be removed far abuse of his power and duties. We are also satisfied that such removal will cause no injury to the estate or the parties. We have exercised the discretion of removal very cautiously, keeping in the background the relevant circumstances of this case, and not forgetting the duty of the Court to secure, as fat as practicable, the rights of all the parties concerned, in the protection of the property and the distribution of the funds. We are not unmindful to the free that we have not made a sweeping investigation into the conduct of the receiver. We think that the whole Estate would be better managed and the interest of all the parties would be better served, if it is placed in the hands of a competent Receiver. 76. I have come to the above consuls on because the facts are clear. I have stated them, as objectively as I can, irrespective of the consequences. I have drawn the inference that is manifest from the facts. But where the facts are in issue, I have always remembered the cardinal principle of justice that no man is to be condemned on suspicion and that there must be evidence which proves his guilt before he is pronounced to be so. I have therefore taken the facts in his favour rather do an injustice, it is my deep remorse that for such action, embarrassment is caused to a Court's officer. I have therefore taken the facts in his favour rather do an injustice, it is my deep remorse that for such action, embarrassment is caused to a Court's officer. Over the run, we decided after anxious consideration, that we should remove the Receiver forthwith. When most of the allegations were well founded, the truth should not be hidden and when we are convinced, we must he cool, steel hard. It has been demonstrated to our entire satisfaction that the Receiver had not the qualifications other to merit or to continue his appointment, 77. WHILE, however, we can well see, very hazy reasons that the order for the removal of the Receiver has not been passed by the Trial Court, we can see very good foundation, for the appeal, on the grounds on which it was pressed before this Court ; and we think for reasons, already indicated, that the directions set forth, herein should be properly followed and. specifically the account matter should be thoroughly investigated and necessary order on the same should be passed by the Trial Court when the mailer of discharge of the Receiver comes finally before it. 78. IN view of the facts brought to light and in the events which have happened, it is not only desirable but manifest that a lawyer Receiver should be appointed, who is not usually connected with the Courts of Alipore. We intend to appoint, on common compromise, if possible, an Advocate of this Court, as a Receiver of the Estate pending the disposal of the suit. We direct Mr. Neogi to in like over charge of the Estate in his possession immediately to the new Receiver, going to be appointed, but in any event it must be before the 12th of October next, when the Civil Court closes for Puja holidays. The new Receiver would act under the direction of the learned Subordinate Judge, second Court, Alipore. Pending the issuance of the formal writ, in favour of the new Receiver, which might take some time due to the ensuing vacation, the new Receiver would be entitled to act as such, under the provisions of Order 40 of the Code of Civil Procedure, on the strength, of this order of ours. We make it dear that the new Receiver would be eligible to offer personal security of the sum of Rs. We make it dear that the new Receiver would be eligible to offer personal security of the sum of Rs. 50,0oo/-to the satisfaction of the Court below, before the writ is issued. Ail the parties will, afford necessary facilities to the new Receiver for his taking over charge from Mr. Neogi. He would get the same remuneration for the present, as Mr. Neogi was getting ; though we "note that it is inadequate, particularly in view of the present economic condition of the country. The learned Subordinate judge would consider the increase of the same after hearing all the parties and certainly in the background of the present financial condition of the Estate. Needless to say that he would get travelling allowances, the rental of the office and other allowable expenses. He would render accounts to the Court below every three months from the date he is given charge of the Estate and he assumes the office of the Receiver, 79. WHILE the new Receiver would manage the Estate to the best of his abilities, the Trial Court on the other hand would see that it might hear and decide the suit as early as possible, 1 would be glad to hear that the parties here settled their differences because not only they must cat but they must know what their next meal would be coming from. I hope that a change of heart would come, after time has assuaged the burden of guilt. Conditions are fast changing and human foresight has been proved to be limited, judgement by what men do and overlooking what they say. 80. ALL the documents tiled in this Court would form part of be Trial Court records. Only the application filed in this Court would be kept in the High Court file. As some of the records before they reached this Court, are found missing, we direct the Trial Court to keep the entire record in safe custody and to allow inspection of the same to the parties, only in presence of a Court's officer. I must confess that before embarking on this appeal, I did not know that the position of the record was so hopeless. I must confess that before embarking on this appeal, I did not know that the position of the record was so hopeless. I must point out that my judgment has been, subject to some unavoidable delay for the haziness of the records and also because most of them bad not been printed, without caring the preservation of the eyesight of the Judges. At every stage I had to refer to the original records and then, the relevant ones were not also easily available, being haphazardly arranged. Such was the inescapable difficulty, inherent in the hearing of the appeal, we have been faced with. 81. TO those, who, might reproach me for a long judgment, I would make this answer ; while the interest of the parties demands justice to each one of them and speaking as a Judge, I put Justice first, there is yet another overriding interest, namely the integrity of the Court's officer, which demands that the fact's should be ascertained as completely as possible. 82. THE result is that the appeal is allowed As regards its costs, we are of option that Mr. Neogi has been error in opposing the appellant for his remover in the Court below and in opposing the appeal here. We must therefore direct the Receiver to bear his own costs here and in the Court below and make him personally liable for the costs of the appellant in this appeal and before the Trial Court the considered hearing fee being assessed at 30 gold mohurs. All the other parties would bear their own costs in this Court as well as in the Trial Court. Mr. Neogi is present in Court when the judgement is delivered. He has bested the directions stated in the judgement and particularly the portion where we have directed him to make over charge of the Estate to the new Receiver, not later than 12th October 1966. Mr. Chatterjee stated that "it would be difficult to hand over the charge before that date". The reasons which are given, do not find favour with us and we reject the same. We repeat the directions on the Receiver to make over the charge not later than 12th October 1966, otherwise he would act at his own peril. 83. ON the suggestion of Mr. Ashutosh Ganguly, the learned advocate appearing on behalf of the defendant No. 1 and confirmed by Mr. We repeat the directions on the Receiver to make over the charge not later than 12th October 1966, otherwise he would act at his own peril. 83. ON the suggestion of Mr. Ashutosh Ganguly, the learned advocate appearing on behalf of the defendant No. 1 and confirmed by Mr. Mitra, the learned Advocate appearing on behalf of the defendant No. 3 appellant, and not objected to by any other party, we appoint Mr. Harinarayan Mukherjee, learned Advocate of this Court, a recover of the Estate as indicated in the judgement. Besides other directions, given in the judgment, he would take charge of the Estate from the outgoing Receiver. Mr. Neogi, on or before 12th Oct, 1966. A copy of an extract of the relevant portion of the judgment would be given to him, on which he would act. We have directed Mr. Neogi, who is present in Court today, to make over charge of the Estate to Mr. Harinarayan Mukherjee, Advocate, on or before October 12 next 11 he fails to do so, he would act at his peril. 84. V On the delivery of this judgment, a plain copy of which would be given to the new Receiver, Mr. Chatterjee prays that there should be interim order for say of operation of this order of the removal of Mr. Neogi as a Receiver, As we have given sufficient reasons in this long judgment and as "we have held that the Receiver should be removed forthwith, we do not find any reasons to stay the operation of our under and we therefore repeat the order hat it would have its force with immediate effect. The result of Court officer's disgrace is complete it is so distasteful that I shake my head sadly, draw a sheet over the corpse and tiptoe quietly into the open air.