Misra, J.

(1) These are two appeals and two applications in civil revision arising out of two orders passed by the learned Additional Subordinate Judge Sasaram, in Title Suit No. 18/87 of 1950/1949. Miscellaneous Appeal No. 132 is directed against the order dated 2-3-1954, and Civil Revision No. 440 is also concerned with the same order and has been filed to obviate any possible objection that no appeal lies. Miscellaneous Appeal No. 134 is directed against the order dated 20-1-1954 passed by the same Subordinate Judge in the above suit and Civil Revision No. 445 has been filed likewise against the same order dated 20-1-1954, as a matter of precaution in case it is held that no appeal lies against this order as well. The appeals and civil revision applications are by Rohtas Industries Ltd. ,and Dalmia Jain and Co., Ltd., and the respondents are (1) The Receiver, Murli Hills, appointed by the Court in the above suit, (2) Kalyanpur Lime Works Ltd., who were plaintiffs in the suit and (3) The State of Bihar through the Collector of Shahabad, one of the defendants in the suit.

(2) The aforesaid title suit was instituted by the plaintiffs for specific performance of a contract for lease granted in their favour by the State of Bihar. The suit was decreed by the trial Court but, on appeal, the High Court set aside the judgment and dismissed the suit. The plaintiffs went up in appeal to the Supreme Court and the ap-peal was allowed in terms of compensation payable to the plaintiffs by the State of Bihar. It appears that Mr. P. N. Gour, Advocate, was made receiver by virtue of an order passed by the High Court. It may be stated that Dalmia Jain and Company were the managing agents of Rohtas Industries Ltd.

(3) The receiver submitted his accounts duly in respect of the amount payable by Rohtas Industries Ltd. to the Court on account of the limestone supplied to them from time to time from the quarries at the upper and lower Murli Hills. The accounts were audited by Messrs. Darbari and Co., Chaptered Accountants. They submitted a report dated 4-4-1952, for the accounts relating to the period 21-11-1950 to 31-12-195

1. A second report was submitted on 31-10-1952, pertaining to the period 1-1-1952 to 15-10-195

2. It appears that objections were filed to the auditors report by Messrs. Dalmia Jain and Co. Ltd. and Rohtas Industries Ltd., who were no party to the title suit in which the above receivership proceeding arose, had filed a claim case. It may be stated that the main objection raised, by Rohtas Industries was that the accounts of the receiver in respect of the claim laid against them should hot be passed unless they had an opportunity to examine the account books of the receiver relating to (a) raising reports, (b) loading reports (c) stock registers and other necessary documents, in the absence of which they were not in a position to judge the correctness of the figures in the receivers accounts. The specific objection related to the following heads: (1) the receiver supplied bad quality of limestone and. therefore, the price charged was excessive; (2) the quantity of limestone received was less than what was filled for; (3) the royalty charged in the bills was at the rate of -/9/9 pies per ton, whereas the correct rate should have been only -/4/- annas per ton according to the Mineral Concession Rules; (4) there should have been ho charge for the removal of overburden; and (5) the amount charged for Patra was excessive as the rate was that of limestone, whereas it should have been at a much lower rate as it means stone of 70 per cent., and below total carbonate. There were also general objections with regard to the receiver not having taken proper care to keep down the costs of supply of limestones to the objectors. The figure at which the claim of the objec-tors was laid was Rs. 4,67,723/10/6, and making allowance for the proper claims by the receiver the company demanded a sum of Rs. 2,28,677/5/- as the amount payable to them by the receiver.

(4) It may be useful at this stage to explain the method of supply of limestone to Rohtas Industries Ltd. by the owner of Murli Hills for the manufacture of cement by Rohtas Industries Ltd. It is not denied that the rate of limestone per ton to be supplied was settled by the Court from time to time and it was Rs. 7712/- per ton during the period under consideration. The cost included raising cost, which meant expenditure incurred in the actual operation of quarrying of limestone. This involved, further, the removal of overburden, which meant the earth and stone of an upper layer which have to be cleared off before limestone of the requisite quality is reached. Patras mean the inferior quality of limestones which are to be found in the various seams of stone which are of inferior quality. After the limestone is raised, it is loaded in the wagons of Dehri Rohtas Light Railway to be carried to the actual site of the cement works of Rohtas Industries Ltd. The charges incurred for loading the limestone are added to the cost of raising of the materials. The wagons pass through a place known as Banjari Weighment Bridge where the limestones are duly weighed by the Khas Mahal department of the Government for the purpose of collecting the amount of royalty to which the Government would toe entitled in respect of each ton of limestone raised and supplied to Rohtas Industries Ltd, The latter also held railway receipts prepared by the Railway which is owned and managed by Dalmia Jain and Co. one of the appellants, to indicate also the actual quantity loaded in the wagon for supply, so that there is no dispute with regard to the actual heads of cost included in the bills of the receiver which were duly audited and accepted by the Chartered Accountants Messrs. Darbari and Co. The only difference, therefore, between the parties relates to the rate, quality and quantity of the material supplied and not to the inclusion of a head of expenditure which was not warranted in terms of the agreement between the parties. It is also not denied that the Court by its order dated 4-5-1951 also fixed the rate per ton at which the limestone was supplied to the objectors.

(5) Learned counsel for the respondents Kal-yanpur Lime Works Ltd. and Mr. P. N. Gour, receiver, who appeared in person, raised a preliminary objection that no appeal lay against the present orders. They developed their argument mainly on two grounds, first, that the objection to the receivers accounts was made by Messrs. Dalmia Jain and Co. who were one of the defendants to the suit. Rohtas Industries Ltd. were no party to the suit and hence, they were not competent to prefer an appeal. In the next place, the objection made was to the auditors report and to the, accounts of the receiver and in that view also, no appeal would lie against the order of the Court accepting the reports of the auditor, in the third place, it was urged that no appeal is provided for under the Code of Civil Procedure against the order of the Court accepting the accounts of the receiver. Reliance was placed in support of this contention on the case of Ganesh Lal v. Satya Narayan Singh, 4 Pat LJ 636 : (AIR 1920 Pat 220) (A) and : the case of Chandreshwar Prasad v. Bisheshwar Pratap, 5 Pat LJ 513: AIR 1920 Pat 501 (B) for the proposition that an order under Order 40, Rule 4 Civil P. C., which is appealable under Order 43, Rule 1(s), does not provide for an appeal by a person other than the receiver against whom the order is passed and that, too, when the Court proceeds to attach his properties in satisfaction of the claim established against him. In the absence of an order of attachment, no appeal would be competent against the order. Order 40, Rule 4, further specifies the conditions in which alone the receiver would be held liable. An order of the present kind, accepting the receivers accounts, is one aginst which no appeal is provided. Learned counsel for the respondents brought to pur notice the case of Shrinivas Kuppuswami v M. C. Waz, AIR 1921 Bom 427 [LQ/BomHC/1920/60] (C). That was a case in which the receiver appointed by the Subordinate Judge submitted his accounts which were examined from time to time and passed by the Court. More than one year after the order, the plaintiff in the suit applied to the Subordinate Judge for leave to sue the receiver for damages caused to him by the negligence, laches etc. of the receiver. Leave was granted. The receiver filed an appeal in the High Court, of Bombay. The appeal was, however, dismissed on the ground that no appeal lay against the order, granting leave to a party by the Court appointing the receiver to sue him. There it was observed, that an appeal lay against the order passing the accounts of the receiver. The observation runs thus: "But it seems to us that an appeal lay against the order of 22-12-1917. Though the order was not against the Receiver, it was an order really refusing relief against the Receiver, so an appeal lay because under Order 43, Rule 1 , there is an appeal against) an order under Rule 4 of o. 40, and in Zipru v Hari Supdushet, 42 Bom 10: AIR 1917 Bom 133 [LQ/BomHC/1917/53] (D), it was held that an order made upon an application under Rule 100 of Order 21, Civil P. C., dismissing the application was an order made under Rule 10

1. So that where a Court is seized with a particular matter under a particular rule, and an order under that rule is appealable, the order made by the Court, whether it is a positive order or a negative order dismissing the application, is still appealable under Order 43, Rule 1." Learned counsel for the appellants contended that it would be extremely hard view that when an order passed against a receiver could be appealable under Order 40, Rule 4, a similar order in the receivers accounts passed against the party who may be put to a heavy loss on account of the laches of the receiver would not be appealable and the party in all cases have to go to a Civil Court. It maybe . as Heaton J. in the above case also pointed out that Order 40, Civil P. C. is not happily worded and leaves room for improvement. Heaton J. also expressed himself strongly in favour of the view, that an order relating to the accounts of the receiver would be covered by Rule 4 of Order 40, and as such would be appealable. As it is, however, I am not prepared at this stage to depart from the decisions of this Court which are Division Bench decisions, referred to above 4 Pat LJ 636 : (AIR 1920 Pat 220) (A) and 5 Pat LJ 513: (AIR 1920 Pat 501) (B), where the limits of Order 40, Rule 4, Civil P. C., within which alone an appeal can be preferred, have been defined. Mr. Katriar, for the appellants, relied upon the decisions in the cases of Lachminarayan Modi v. H. Naik and Co., AIR 1947 Pat 5 [LQ/PatHC/1946/59] (E); K. Sambbasiva Chettiar v. Secretary of State, AIR 1940 Mad 703 [LQ/MadHC/1939/281] (F) and The Eastern Mortgage and Agency Company Ltd. v. Fakhruddin Mohammad Chow-dhury, 17 Cal WN 16 (G) in support of his contention that such an order is covered by Order 40, Rule 1, Civil P. C. and is thus appealable. It appears that the Madras case was one where an order passed by the Court directing the receiver to pay a certain sum of money to the Government was held to be appealable in terms of Order 40. Rule

1. A similar situation arose in the above Calcutta case where also the receiver was directed by the Court appointing him to pay certain sum to the judgment-debtor in order to enable him to prefer an appeal against the decree. Such an order was held by the Division Bench of the Calcutta High Court to be appealable. It seems, however, that both the aforesaid cases come strictly within the purview of Order 40, Ru;e l(d), which empowers the Court to issue an order with regard to the application and disposal of the rents and profits of the estate. The present case does not come within the purview of that order and as such the above two cases are of no assistance to the appellants. The case of AIR 1947 Pat 5 [LQ/PatHC/1946/59] (E), which is a decision by Sinha and Das JJ. (as they then were), relates to an order passed by the Court directing the receiver to pay a certain sum of money to the auditor for work done in connection with the estate. It was, no doubt, held that such an order was appealable in terms of Order 40, Rule 1(d). The ratio of that case also, however, was that the order passed by the Court in that case fell within the purview of Order 40, Rule 1(d) as it amounted to a direction to apply a portion of the assets of the estate in a particular way. It was held that this case was covered by the decision in the above Calcutta case 17 Cal WN 16 (G). In my opinion, therefore, this case is of no assistance to learned counsel for the appellants on this point.

(6) I may, however, state here that the view expressed by their Lordships supports the contention raised on behalf of the appellants in so far as the objection of the respondents with regard to an appeal being preferred by Rohtas Industries Ltd. is concerned. I have mentioned above that one of the grounds raised was that no appeal by a party who is not impleaded in the suit can be filed in a receivership proceeding arising in course of the suit. Mr. Katariar relied upon the observation of Sinha J. who delivered the judgment saying that if the auditor in whose favour the order for payment was passed by the Court had not been impleaded, the appeal would have been incompetent. It was urged that it amounted to laying down that the auditor was properly impleaded in the appeal although he was no party to the suit itself. Where, therefore, an order is passed against a party or in favour of a party in a receivership proceeding, he is entitled to be impleaded and, in any case, is a proper party to be impleaded in the appeal as he is directly affected by the decision of the appeal itself. Mr. Katariars contention appears to be supported by the aforesaid decision. I am likewise in agreement with the argument of Mr. Katariar on the first preliminary objection, namely, that the objection by Dalmia Jain and Co. was only directed to the auditors report and not to the receivers accounts. Mr. Katariar contended that the objection in substance was to the accounts submitted by the receiver and not to the auditors report although in form it was directed against the report as such. In my opinion, it is right to urge that although in form the objection was, to the report of the auditor, in substance it was to the accounts of the receiver and I would, accordingly, overrule the first two objections raised by Mr. A. B. Saran and Mr. P. N. Gour for the respondents. Since, however, the third preliminary objection raised by, the learned counsel for the respondents that no appeal lies against an order accepting the account of the receiver passed by the Court, prevails; I must hold that the two appeals preferred are not maintainable. Learned counsel for the ap-pellants, however, urged that the applications in revision were preferred to guard against the preliminary objection which might be raised by the respondents and, in any case, he was entitled to press the two applications in revision. I have ac-cordingly to determine the point in dispute in the two applications in revision. (7) With regarct to the two civil revision applications, learned counsel for the respondents raised another preliminary objection. It appears, that Miscellaneous Appeal No. 134 and the connected Civil Revision No. 445 directed against the order dated 20-1-1954, were filed in this Court on 19-4-1954. The last date for filing the appeal within the requisite period of three months would be 29-4-1934, as the order was passed on 20-1-1954. The stamp report pointed out that when this appeal and the civil revision application were filed by Mr. R. P. Katariar on behalf of the appellants, there was no vakalatnama executed in his favour at all. It appears that a vakalatnama was filed subsequently on 30-4-1954, which was taken back due to certain formal defects and was re-filed on 3-5-1954. Mr. A. B. Saran urged that the filing of the appeal and the civil revision application, accordingly, on 19-4-1954, was not a valid filing in the eye of law, as Mr. R. P. Katariar held no power from the appellants-petitioners. When vakalatnama although defective, was actually filed on 30-4-1954, the appeal and the civil revision application were already barred by time on 29-4-1954. In my opinion, the preliminary objection is well-grounded and must prevail. Since, however, I have already held that no appeal lies, this point is not of much importance so far as Miscellaneous Appeal No. 134 of 1954 is concerned. It was, however, urged that there is no time limit with regard to the filing of a civil revision application and the delay might be condoned. It is, however, settled practice of this Court that ap-plications in civil revision should also be filed as a rule within the period of 90 days allowed by law for an appeal, and the Court has a discretion thereafter to entertain an application in a suitable case. In my opinion, there is no justifiable reason for granting any indulgence to the petitioners in the present case, and the civil revision application must also, accordingly be held to have been filed beyond time and must fail on this preliminary ground alone.

(8) Miscellaneous Appeal No. 132 of 1954 together with the allied Civil Revision No. 440 of 1954 are directed against the order dated 2-3-1954. They were filed on 19-4-1954, as well, but they were in time up to 2-6-1954. Learned counsel, however, filed a defective vabalatnama on 30-4-1954, as in the above two cases, but re-filed a vakalatnama on 3-5-1954. Apparently, this filing was within time. Learned counsel for the respondents, however, urged that the vakalatnama dated 3-5-1954, was executed by Sri M. L. Burman as a liaison officer of the company, and not the chief officer who alone would be competent to execute the vabalatnama on behalf of the company. An affidavit was, filed, accordingly, by the respondent Kalyanpur Lime Works Ltd. to the effect that Sri M. L. Burman had no power to execute a vakalatnama after which there was a counter-affidavit filed on behalf of the appellants to show that he had such power. Mr. P. N. Gour urged that, in the circumstances, it should be held that the filing of the vakalat-nama on 3-5-1954 also would not save the appeal and the civil revision application from the bar of limitation. He relied in this connection on the case of Badri Prasad v. Bhagwati Dar, 16 All 240 (FB) (H) and Order 3, Rules 1 and 2, which deal witn the appearance of a party in Court in person, by recognised agent or by a pleader. Mr. Gour stressed in particular the provisions of Clause (b) of Rule 2 of Order 3 read with Clause (a) of that Rule. His contention was that in order to take advantage of execution of power in favour of the learned advocate who filed the appeal, it should have been only by the "recognised agent" which term would include persons holding powers of attorney as mentioned in Clause (a) of Rule

2. Clause (b) runs as follows:

"Persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within Which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts."

Mr. Gour contended that that clause also contemplates power conferred upon persons carrying on trade or business for and under the names of parties etc. or an agent expressly authorised to make and do such appearances etc. Mr.M. L. Burman could not come within the scope of this provision as well It is no doubt true that the above Allahabad case, supports the contention of Mr. Gour but, in my opinion, this point is not material, because a vakalatnama purporting to have executed by one of the officers of the company was duly filed. The matter is one of dispute as to whether the liaison officer was authorised to execute a vakalat-nama or not. In the circumstances of this case, however, I do not think it necessary to go into this question more fully because Miscellaneous Appeal No. 132 and Civil Revision No. 440 become incompetent, because Mr R. P. Katariar has conceded before us that he is not aggrieved by the order dated 2-3-1954, since the order really passed against him was dated 20-1-1954 which gave rise to Miscellaneous Appeal No. 134 and Civil Revision No. 445 which, I have found above, were filed beyond time.

(9) Mr. A. B. Saran, for the respondents, raised a further objection with regard to the jurisdiction of this Court to interfere with the order passed by the Court below. He urged that no appeal or revision could be preferred against the order in question because the High Court passed an order on 17-6-1952, in Supreme Court Appeals Nos. 24 and 25 of 1952 which were perferred by the plaintiffs against the judgment and decree of this Court in the aforesaid title suit. It appears that a petition was filed in the Supreme Court of India by the defendants, the State of Bihar and Messrs. Dalmia Jain and Co. Ltd., for discharge of the receiver and delivery of possession to the defendants whose appeals in this Court, being First Appeals Nos. 99 and 137 of 195

1. were allowed and they were declared entitled to remain in possession. The Supreme Court, however did not pass any final order on that application and directed the parties to agitate the matter in the High Court. The plaintiff, Kalyanpur Lime Works Ltd. filed an application in this Court objecting to the discharge of the receiver. It appears that the main difficulty in the way of delivery of possession in favour of the State of Bihar was the passing of the accounts of the receiver and the claims outstanding against Rohtas Industries Ltd. in respect of the supply of limestone. Rohtas Industries being anxious for delivery of possession filed an application in the Court of the learned Subordinate Judge stating the terms on which they were prepared to. pay off the entire claim of the receiver so as to facilitate Speedy delivery of possession of the Murli Hills to the State of Bihar. They also gave an undertaking to the same effect to this Court and, accordingly, an order was passed on 17-6-1952 by Jamuar and Sinha JJ. for discharge of the receiver and for delivery of pos session of the properties to the State of Bihar on the following undertakings given by Rohtas Indus tries Ltd.:

"(1) They shall pay to Messrs. Dalmia Jain and Co. Ltd., their dues against the Receiver as deter-minded by the Subordinate Judge and (2) after paying that amount, whatever amount remains which the Receiver is claiming against the supply of limestone to them will be deposited by them into the treasury to the credit of the Court. These amounts will be ascertained by the Subordinate Judge must be paid by Messrs. Rohtas Industries Ltd. within one week of the date of ascertainment. The Receiver shall deliver possession of the pro-perties to the State of Bihar within one week from the date of the aforesaid deposit. The aforesaid amount so deposited in the treasury will not be paid to the Receiver or to anybody else until the amount has been checked and the claims of Messrs. Rohtas Industries Ltd. have been determined and adjusted by the Subordinate Judge and after this adjustment whatever amount still remains to be paid shall be paid under the directions of the Court and (if there be any balanc left out of the deposit so made by Messrs. Rohtas Industries Ltd.) that balance will be refunded to them."

These terms of the undertaking were duly incorporated in the aforesaid order of the High Court. Mr. Saran urged that Rohtas Industries Ltd. were bound by their undertaking by which they authorised the Court of the learned Subordinate Judge to determine and adjust the claims of the receiver against Rohtas Industries Ltd., and whatever order was passed by that Court would be carried out and the amount found due against Rohtas Industries Ltd. by the learned Subordinate Judge would be paid out of the money in deposit in the treasury and the balance left out of the deposit would be refunded to them. This amounted to vesting complete power in the Court to give a decision in the nature of an award with regard to the claim of the receiver. Messrs. Rohtas Industries Ltd. were anxious that the State of Bihar should get delivery of possession forthwith as such an order would operate in their favour, they being the lessees under the State of Bihar and hence supporting it. It was for this consideration that they made the offer aforesaid. If they had not made the offer, it might well be that the office of the receiver would have continued further in the interest of the parties to the Supreme Court Appeal. Since, however, the order discharging the receiver and directing delivery of possession in favour of the State of Bihar was passed only on the undertaking given by Messrs. Rohtas Industries Ltd. they having taken advantage of that offer were not entitled to turn round and to question the adjudication by the learned Subordinate Judge. The effect of the undertaking was to invite the Court to act as a final arbiter in the matter of accounting between the parties. The order passed by the learned Subordinate Judge, accordingly, was not merely as a Court in seizin of the estate in the hands of the receiver but, further, on his having been invited to act extra cursum curiae and, therefore, Rohtas Industries Ltd, had no right of appeal or revision against the order passed. Reliance was placed on the case of Central India Spinning, Weaving and Manufacturing Co. Ltd. v. Khemraj Marwari, ILR 18 Pat 261 : (AIR 1939 Pat 514 [LQ/PatHC/1939/22] ) (I), wherein a Division Bench of this Court consisting of Maho-har Lall and Chatterji JJ. held on an examination of the authorities, both Indian and English, as "follows :

"It is unnecessary to refer to further cases. The true rule, which I conclude, is that where the party invites the Court to adopt a procedure which is not contemplated by the Code of Civil Procedure, and in fact the procedure is extra cursum curiae, he cannot turn round and say that the Court is to blame for the very procedure which he invited the Court to follow. In each case the appellate Court will try to find as to what the true intention of the party was and the question whether an appeal lies or not will depend upon the conclusion arrived at by the Court."

In my opinion, the present case is covered by the authority referred to above because, as I have said, if Rohtas Industries Ltd. had not offered to give the undertaking in question, the High Couit would have decided in the usual course the merits of the application of Kalyanpur Lime Works Ltd. for the continuance of the office of the receiver to safeguard their interest. After taking advantage, however, of a compromise order for immediate delivery of possession in favour of the State of Bihar, it will be manifestly unjust to allow them to question the order of the learned Subordinate Judge holding Rohtas Indus-tries Ltd. liable for, the amount found due by the auditors Messrs. Darbari and Co., who were appointed to look into the accounts of the receiver by the eon-sent of the parties concerned. This is an additional reason for holding that none of the appeals or civil revision applications can be entertained by this Court, which must accordingly be dismissed en this ground as well.

(10) It may, however, be useful to refer to the argument on merits of the case advanced by the learned counsel for the parties, because we were addressed at great length on merits as well and it would be accordingly, desirable to pronounce our opinion as to this matter too. (After going through the objections his Lordship continued as under :) Thus, all the objections on merits raised on behalf of the appellants also appear to me to be without any substance and must be overruled.

(11) I also see no force in the argument that a sum of Rs. 50,000.00 should not have been charged for overburden cost. As I have said above, the removal of overburden is necessary for getting to the proper level where limestone of the requisite quality could be available. It is difficult to see how Without removal of the overburden the same could have been reached. Mr. Katariar contended that this part of the operation was carried out by Dalmia Jain and Co. Ltd. because they were receivers before the coming in office of the present receiver, so that this amount should not have been included in the cost. The receiver urged, in reply, that it was part of the cost of the estate incurred for raising the limestone and it was, therefore, necessary to include it. I am unable, therefore, to find any substance in this objection as well.

(12) In the view that I have expressed above, it is not necessary for me to detail the specific quantities in regard to which objection was raised by Rohtas Industries Ltd. because they have found to be without substance in bulk, irrespective of the actual figures put up for consideration by them.

(13) In the result, the applications are dismissed both on technical ground and on the ground of merit as well.