Judgment 1. This is an application made by Prabir Kumar Gupta inter alia, praying that the death, of Krishna Chandra Chatterjee, the plaintiff/Receiver be recorded. The petitioner has also prayed for ad-interim order for appointment of new Receiver in place and stead of the said Krishna Chandra Chatterjee who was appointed Receiver by an order dated 16th March, 1983. The said Krishna Chandra Chatterjee was in possession of the properties and assets of the firm in the name of D, Albert & Co situated at and having its business premises at No. 55A Mirza Galib Street, Calcutta-16, as receiver appointed in the above matter. There is no dispute that the said Krishna Chandra Chatterjee was in possession of the said business premises of D. Albert & Co. in his capacity as the Receiver appointed by this Court pursuant to order dated 16th March, 1983, until his death on 2nd July, 1994. 2. The Originating summons was taken out by Krishna Chandra Chatterjee as plaintiff on 27th January, 1983. From the pleadings made in the originating summons itself, it appears that Krishna Chandra Chatterjee had 35% share in the said business under, the name of D. Albert & Co. Haricharan Chatterjee, the original defendant had 25% share in the said business and Desmond Arthur Albert since deceased had 40% share in the said business The said Desmond Arthur Albert died on 16th November, 1979. The partnership deed as pleaded in the originating summons had a clause therein as follows :- "In the event of the demise of any partner during the continuance of the partnership business his share shall devolve upon such person or persons and in such proportions as may be nominated by him and the last such nomination before his death shall be effective to the execution of all previous nominations". 3. The petitioner Prabir Kumar Gupta is claiming to be the legal representative of said D. A. Albert deceased. In fact he had obtained an order for grant of probate in his favour' on contest. The order for grant of probate to said P. K. Gupta has been challenged in appeal and is at present the subject matter of an appeal. By an order dated 15th February, 1991 passed in the said appeal from the order granting probate the. In fact he had obtained an order for grant of probate in his favour' on contest. The order for grant of probate to said P. K. Gupta has been challenged in appeal and is at present the subject matter of an appeal. By an order dated 15th February, 1991 passed in the said appeal from the order granting probate the. Appellate Court, inter alia, ordered that during the pendency of the said appeal or until further orders the executor named in the will in whose favour the probate has been granted will function not as executor but as Administrator pendente lite in accordance with the law. Under the circumstances, Prabir Kumar Gupta is since 15th February, 1991 acting as an Administrator pendente lite of the estate of the said deceased Desmond Arthur Albert. The said Prabir Kumar Gupta is also claiming that the share or the said deceased Albert has devolved upon him as a nominee of the said D.A. Albert. By and under his will dated 30th April, 1979, the said deceased D.A. Albert gave, devided and bequeathed to the said Prabir Kumar Gupta, all his right, title and interest including the Good-will and share of profits in the partnership business in the name & style of D.A. Albert & Co. absolutely. The said will was probated as already stated above and the order for grant of probate is now under challenge in the Appeal as aforesaid. 4. Some of the questions that were raised in the said originating summons were as follows:- "1A. Whether on the death of the Desmond Arthur Albert his heirs are entitled to any share in the profit and loss of the firm? 1B. Whether the estate of Desmond Arthur Albert is liable to make payment to the firm of all the amounts overdrawn by the deceased during his life time? 1C. Whether the heirs or representatives, if any, of the deceased have any right to participate in the business of the firm?"• 5. The said originating summons appeared for hearing before this Court, before the learned Judge then taking these matters and was heard on 18th March, 1983 and 21st March, 1983. On 21st March, 1983, the Learned Judge gave a direction for service of the originating summons upon the legal heirs and representatives of D. Albert deceased by registered post with acknowledgment due. On 21st March, 1983, the Learned Judge gave a direction for service of the originating summons upon the legal heirs and representatives of D. Albert deceased by registered post with acknowledgment due. It appears from the minutes of the said date that the learned counsel appearing for the writ petitioner inter alia, stated that Prabir Kumar Gupta was claiming to be legal rej1resentative of D. Albert but according to the petitioner he was not such legal representative. 6. On 24th March, 1983, a notice was, in fact, sent addressed to Mr. Prabir Gupta by the learned Advocate for the petitioner. It appears that the address given therein was incorrect and the said notice enclosing the originating summons came back with the remark 'Not known. 7. Thereafter on 20th April, 1983 when the matter again came up for hearing, the court gave leave to the petitioner t6 serve the Advocate on record for the heirs of D. Albert (deceased). The orders for service of the notice of the originating summons were made apparently Suo motu by the court since the court must have felt that the questions which were raised in the originating summons for decision, cannot be decided in the absence of the heirs and/or legal representatives of the said deceased, Thereafter the notice, was served on the Advocate-on record of the said Prabir Kumar Gupta, the petitioner, herein. The said Advocate-an-record of Mr. P. Gupta must have been representing P. Gupta in other litigations and/or matters between the parties and after the service was effected on Mr. P. Gupta through his advocate the said Mr. P. Gupta appeared through the counsel in the said originating summons, for the first time on 14th of June, 1983. On the 14th June. 1983. an order was made by consent of the appearing parties which included the plaintiff giving directions for filing of affidavit's. On 29th of June, 1983. Mr. P. Gupta filed the affidavit-in-opposition. It ii not disputed that the said Krishna Chandra Chatterjee filed his affidavit-in-reply-dealing with the said affidavit-in-opposition. 8. On 21st January, 1986, the said originating summons was heard by Justice A. K. Sengupta and the petitioner Gupta duly appeared through counsel at the said hearing. Mr. P. Gupta filed the affidavit-in-opposition. It ii not disputed that the said Krishna Chandra Chatterjee filed his affidavit-in-reply-dealing with the said affidavit-in-opposition. 8. On 21st January, 1986, the said originating summons was heard by Justice A. K. Sengupta and the petitioner Gupta duly appeared through counsel at the said hearing. It has been submitted that the matter was heard on other occasions also but since no minutes have been produced with regard to such other hearings, on the other days, 1 do not think it necessary to go into the said question. 9. Though there is no formal order adding the petitioner as party to the originating summons, yet there is no doubt in my mind that the court must have felt that the petitioner ought to have been joined as defendant or that the petitioner's presence before the court was necessary in order to enable the court to effectually and completely adjudicate upon and settle an questions involved in the originating summons. The order for service of originating summons upon the petitioner, the order for filing of affidavit-in-opposition by Gupta and affidavit• in-reply by K. C. Chatterjee, which was made by consent, the filling of affidavit-in-opposition by Gupta and affidavit-in-reply by K. C. Chatterjee, the appearance of Gupta through counsel to open the said originating summons at the hearing, go to establish that the court was of the opinion that he was a necessary party to the proceedings and the Court allowed him to appear and oppose the said originating summons as a necessary party and the court treated Gupta as a party interested in opposing the said summons and allowed him to oppose the said summons as a party thereto. The said receiver K. C. Chatterjee, who continued to be receiver until his death died on 2nd July, 1994. 10. Before moving the instant application notices were given by the petitioner to all the heirs and legal representatives of the plaintiff Krishna Chandra Chatterjee as well as the heirs and legal representatives of Haricharan Chatterjee the original defendant in the suit. The said Haricharan Chatterjee died some time in 1991: It appears that the original plaintiff Krishna Chandra Chatterjee did not make any application for substitution or for recording the death of said Haricharan Chatterjee. The said Haricharan Chatterjee died some time in 1991: It appears that the original plaintiff Krishna Chandra Chatterjee did not make any application for substitution or for recording the death of said Haricharan Chatterjee. It was sought to be submitted before me on behalf of the heirs and legal representatives of Krishna Chandra Chatterjee that the suit abated since no substitution was made after the death of Haricharan Chatterjee. It is not disputed by the heirs and legal representatives of Krishna Chandra Chatterjee that the said Krishna Chandra Chatterjee was in possession of the said business premises of D. Albert & Co., as the Receiver appointed by this court until his death, on 2nd July, 1994. 11. It was sought to be submitted on behalf of the heirs and legal representatives of the said Krishna Chandra Chatterjee the plaintiff in the originating summons that the suit has abated against the said Haricharan Chatterjee and that the court has no jurisdiction or power to make any order in the said suit which has already abated. According to the observations made in Woodroffe on Receiver (6th Edition) at page 195 the abatement of suit does not affect or determine the appointment of Receiver or suspend his authority to proceed against the tenants. Even if the suit had abated as against the said Haricharan Chatterjee or his heirs the order for appointment of Receiver was surviving and the Receiver was in fact continuing to be in possession of the assets of the said firm as the Receiver appointed by this court. Furthermore one of the opposing parties namely, the said P. K. Gupta, the petitioner therein is still alive and it can not be said that the suit has abated as against him. Though he was not formally added as party yet the summons was directed by the Court to be served on him and he was allowed to oppose the summons. 12. My attention has also been drawn to the passage in Woodroffe on Receiver, (6th Edition) which reads as follows: "The death of a receiver does not end the receivership. Legal custody of property is not affected by the death of the receiver. In a creditor's suit on such event the property assigned to the receiver vests in the Court. In the normal case an appointment will be promptly made in replacement and the receivership shall then be regarded as continuous". Legal custody of property is not affected by the death of the receiver. In a creditor's suit on such event the property assigned to the receiver vests in the Court. In the normal case an appointment will be promptly made in replacement and the receivership shall then be regarded as continuous". 13. The heirs and legal representatives of the said deceased Haricharan Chatterjee wrote a letter dated 12th July. 1994, to the petitioner P. Gupta, wherein they referred to the death of the Receiver K. C. Chatterjee on 2nd July, 1994. They also stated that at present there is no one to look after the business. Accordingly, under the circumstances any outsider can take opportunity of holding the business premises by illegal way with the help of antisocial elements. They requested Mr. Gupta that he should pray to this court for his own appointment as Receiver of D. Albert and Company. The factum of the writing of this letter which was produced before me is not disputed by the appearing heir of Haricharan Chatterjee i.e. Mahesh Chatterjee who is himself a signatory to the said letter along with other heirs. The other heirs in spite of notice have not appeared before this court and are not opposing the prayers of P. K. Gupta made in the instant petition. 14. There is no doubt that the business premises of D. Albert and Company aforesaid was in possession of the Receiver until 2nd July, 1994 that is until death of the receiver K.C. Chatterjee. The property was custodia legis since 1983. I asked the learned counsel on behalf of the heirs of K.C. Chatterjee as to who could be the person who could take possession of the property upon the death of the said receiver. His answer was that whoever may be entitled to the property, will seek his own remedy in an appropriate proceeding. Upon being asked as to who is now in possession it was submitted that an employee of the deceased receiver is in possession. It was not his contention that his clients i.e. the heirs of K.C. Chatterjee automatically became Receiver or became entitled to possession of the property upon the death of K. C. Chatterjee. It could not be so. The receiver was appointed by the court and upon his death, his successors do not automatically become entitled to the possession of the property. It could not be so. The receiver was appointed by the court and upon his death, his successors do not automatically become entitled to the possession of the property. Once a Receiver is appointed and once the receiver takes possession of the property the same becomes custodia legis and no one can be allowed to take possession thereof, without due process of law or without obtaining suitable orders from the Court in whose custody the property is. Simply because the receiver is dead, the property does not and can not be allowed to be res-nullius or to remain in medio. 15. Mr. P. Gupta was contesting the originating summons pursuant to the order of the court. He filed the affidavit-in opposition and he appeared from time to time. He was interested in opposing the originating summons and he was also interested in making claim in the property over which the receiver was appointed The heir of Haricharan Chatterjee, who has appeared before me, has submitted that the heirs of Haricharan Chatterjee are entitled to 2% share in the said business and/or properties thereof. The heirs of Mr. K.C. Chatterjee can not possibly claim more than 35% share in the said property. In fact K.C. Chatterjee did not in the originating summons claim more than 35% share in the property, as per the partnership deed. 16. Once the Receiver is appointed and he takes possession as such the order for receiver survives even if the suit is dismissed thereafter, until the receiver is formally discharged. After the receiver is in possession or the property and if the suit is dismissed thereafter the interested parties in the property, may come and apply to the court for discharge of the receiver and for making over of the property to the persons so entitled to the possession of the property. By any stretch of imagination it can not be said that after the receiver dies the property becomes res nullius or that anybody and everybody can enter into it and can take possession either by force or otherwise. In my opinion once a receiver is in possession the possession is of Court. Even if the suit abates or is dismissed, the order for receiver survives until his discharge is obtained in accordance with law. 17. In my opinion once a receiver is in possession the possession is of Court. Even if the suit abates or is dismissed, the order for receiver survives until his discharge is obtained in accordance with law. 17. In my opinion, the order for appointment of Receiver is still surviving and the person who was appointed Receiver, has died. In my opinion, at this interim stage it is necessary and just and equitable that a new Receiver should be appointed to take charge of the properties and I assets of the said business in terms of the said orders which were already in existence prior to the death of the Receiver. I, therefore, appoint Mr. Goutam Maitra, an Advocate of this Court as Receiver in place and stead of the said deceased K.C. Chatterjee, in terms of the orders already made in the originating summons. He will forthwith go and take possession of the business premises of the said business D. Albert & Co. at 55A, Mirza Galib St., Calcutta-16. He will for the time being either put his lock on the said premises or appoint a guard for guarding the said premises as may be considered suitable in the facts of this case. I am making it quite clear that this Judgment is not intended to take rights of any of the parties at the time of the final hearing of the application. If the Receiver so considers necessary be will be entitled to take Police help and the O.C., Park Street Police Station will render sufficient and suitable assistance to the said Receiver in the matter or taking possession and for guarding the said property. The petitioner will pay 100 G.Ms. to the said Receiver in the first instance on account of his remuneration and subject to further orders of this Court. 18. Stay of operation of this order is prayed for on behalf of the heirs of K. C. Chatterjee but the said prayer for stay is decilned. A. O. by 16.8.94; A.P by 23.8.94. Matter to appear in the list as adjourned motion on 24.8.94. All parties concerned including the Receiver and the officer in charge, Park Street Police station are to act on a signed copy of the operative portion of this judgment and order on the usual undertaking.