1. The question raised in this rule is ore of some nicetyand apparently of first impression in so far as the Courts of this country areconcerned Babu Chandra Sekhar Prosad Singh, a Vakil of this Court, wasappointed Receiver by the Court in a mortgage suit. He submitted his accountsunder rule 3 of Order XL of the Code; and, at the same time, intimated that hewas unable to pay into Court a sum of Rs. 1,390 which had been realised by him buthad been taken from his officer by the judgment-debtor who refused to re-paythe amount. He, therefore, sought the assistance of the Court with a view torecover this sum from the judgment debtor. The rule now under consideration wasthereupon issued upon the judgment-debtor calling upon him to show cause why heshould not refund this sum of Rs. 1,390.

2. The judgment-debtor does not dispute that he has takenthis sum. But he alleges that he received from the officer of the Receiver, asum of Rs. 1,600 and returned to him Rs. 949.33 so that he is liable to Refundonly the difference, namely, Rs. 650-129. But an examination of the accountbook of the judgment-debtor, produced by himself, shows that on 25th September1909, he took from the Receiver through his officer, Sidh Nath Panday, the sumof Rs. 1,600 as a temporary loan. It is thus manifest that he is bound torefund the whole of Rs. 1600 to the Receiver. The Receiver, however, admitsthat not the whole of this sum but only Rs. 1,390 is still due. But thejudgment-debtor has invited our attention to an entry in his own account booksto the effect that on the 6th March 1910, Rs. (sic) was paid to Sidh NathPanday. The Receiver denies the truth of this entry, and on his behalf anaffidavit has been filed to the effect that from before the 6th March 1910,Sidh Nath Panday was in Calcutta and could not possibly have received the sumalleged to have been made over to him. Sidh Nath Panday is now-dead, and we arenot in a position to decide whether this sum was paid to him or not. But as, onthe face of the account book of the judgment-debtor, it appears that thetemporary loan was taken for purposes of accommodation from the funds of theReceiver, it was his duty to pay back that money into the hands of the Receiverhimself: and the Court cannot recognise a payment alleged to have been made toany other person. Under these circumstances, wo must direct the judgment debtorto pay the Receiver Rs. 1,390.

3. No question can possibly arise as to the power of theCourt to make an order of this description. The Receiver is an officer ofCourt. Under orders of the Court it is his duty to collect the income of theproperty in litigation and to bring the money into Court to the credit of thesuit, to be applied as the Court may direct. It is the plain duty of thejudgment-debtor not to intercept any portion of this sum. If, therefore, as amatter of fact, any part of the income has found its way in to the hands of thejudgment-debtor and is improperly retained by him, the Court has amplejurisdiction to compel him to refund the same to the Receiver. As instances ofcases in which a Court has interfered, by summary process, to requirerestoration of the property (or recovery of value thereof) abstracted from thepossession of the Receiver and wrongfully retained, reference may be made toErie Rail Road Co. v. Heath 8 Fed. Cas. 762: In re Day 34 Wis. 638; Schuldz v.Lupt 77 N.Y. Sup 493 and Parkar v. Peacock 30 L. T. N. S. 458. If the contraryview were adopted, the discharge of the duties of the Receiver under thedirection of the Court would be impracticable. We direct accordingly that thejudgment-debtor do, within one month from this date, deposit in this Court tothe credit of the Receiver the sum of Rs. 1,390. If he fails to do so, theReceiver will be at liberty to execute the order of this Court as a decree heldby him against the judgment-debtor, Hari Harendra Sahi, and in thatcontingency, he will be entitled to recover the sum with interest at 12 percent per annum from the 25th September 1909, up to the date of realisation. Nointerest, however, will be charged if the money is deposited within one monthfrom this date.

4. We may add that if the judgment-debtor has any claimagainst the estate of Sidh Nath Panday for money proved to have been paid tohim, he has his remedy by a suit in a Court of competent jurisdiction againsthis representatives.

5. The rule is made absolute to this extent. There will beno order for costs.

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Chandra Sekhar Prosad Singhvs. Hari Harendra Sahi(28.03.1911 - CALHC)