Receiver under
Civil procedure Code and Specific Relief Act in Bangladesh
Shah
Mohammad Omer Faruqe Jubaer
Introduction: In civil cases, a
receiver plays a vital part in helping the court. The Receiver is considered to
be an officer of the court who makes a difference in the court to ensure and
protect the subject matter of suit till the time the court decides the matter. Now
and then, the court considers, it is within the best interest of both the
parties to appoint a receiver who will be dependable for the administration of
the subject matter. The subject matter is for the most part a mobile or
undaunted property. The Receiver is obligated to require care of the property
fair as a judicious man will watch out for his claim of an individual property.
He ought to take after the headings of the court or else his property can be
connected by the court to recuperate the sum which is due to him.
Who may be a receiver under the civil
procedure code and Specific Relief Act?
Under order 40
of CPC and Section 44 of the Specific Relief Act, The Receiver is an
independent and impartial individual who is appointed by the court to
administer/manage, that is, to secure and protect a debated property included
in a suit. For illustration, in a debate between A and B for immovable
property, in case the court considers that it is within the best interest of
both the parties that owners ought to be taken from B and given to an
independent individual, the court may designate a collector who can manage the
property till the time the suit is being chosen.[1]
Such a receiver appointed by the court would be capable of the maintenance of
the property. He can collect the wage gathering like a lease or any other
benefits and utilize it to preserve the property. After deducting the costs
caused in maintenance from the wage gotten from the property, the collector
will have to yield the remaining income, if any, in the court.[2]
He isn't
representative of either of the parties within the activity is consistently
respected as an officer of the court working in the interest of neither
plaintiff nor litigant but for the common advantage of all the parties.
What is the reason for the arrangement of a
receiver?
When a party in
possession of the debated property debilitates the property or causes
irreparable harm to it, the whole question of the suit gets vanquished since
the subject matter ceases to exist or its value gets influenced. Hence, when
the court is of the supposition that the property in the debate must not go to
either of the parties, the court names a receiver who is endowed with the
security and conservation of such property. It may be a shape of an interim
assurance that the court gives to the parties who make the application till the
time the court adjudicates the matter.
Who can designate a receiver?
According to the civil procedure code, the
court sometime recently which the proceedings are pending can appoint a
receiver if it shows up fair and helpful to the court to delegate such
collector. It is inside the optional control of the court to designate the
collector. For illustration, in a suit, the trial court can delegate a
collector. While, in the request, the re-appraising court can name a collector.
However, the tact isn't absolute, arbitrary, or unregulated.[3]
The expression “just and convenient” does not cruel the appointment is based on
the impulses and wishes of the judge on any grounds which stand against equity.
How does the
court choose whether to designate a recipient or not?
For the most
part, a plaintiff files the application for the appointment of a receiver but
respondents can too record such an application. A third party isn't permitted
to record the application but if he is inquisitive about the assurance and
conservation of the property, he can also make an application after taking
permission from the court.[4]
The court must keep the taking after standards in intellect before designating
a receiver:
1.
The appointment of a receiver could be an
optional power.
2.
It may be a defensive alleviation to the
plaintiff. The protest is to protect and protect the debated property till the
time the suit is pending in court.
3.
A receiver ought to not be designated unless the
offended party appears prima facie that he includes a strong case against the
litigant and it is more than likely that he will succeed within the suit.
4.
Appointment of a receiver is one of the hardest
cures because it deprives the litigant of his right to possession sometime
recently the ultimate declare. Hence, the court ought to not resort to it just
on the ground that it will do no hurt.
5.
The court should keep the taking after standards
in intellect sometime recently the court ought to not resort to it merely on
the ground that it'll do no hurt. There ought to be solid trepidation that
there is a threat to the property or the offended party will be in more awful
of a circumstance in the event that the appointment of a receiver is postponed.
6.
The court ought to appoint a receiver as it were
when there's a plausibility of wrong or damage. Too, in case it appears that
the subject matter isn't within the possession of any of the parties and it is
in the common intrigued of both the parties to name a collector for the
security and conservation of the property.
7.
The court ought to see at the conduct of the
party who makes the application for the appointment of a receiver. The party
should come to the court with clean hands and their conduct should be such that
they are not disentitled to this impartial relief.
What is the role of a receiver?
The Recipient is
regarded as an officer of the court and is the expanded arm and hand of the
court. He is dependent on the duty to get debated property or cash given by the
court and oversee such property or cash till the time a decree is passed or the
parties have compromised or any other period as the court considers fit. The
property or finance dependent on the receiver is considered to be custodia
legis i.e. within the care of the law.[5]
The Recipient has no control other than those depending on him by the court
whereas naming him. A person who is independent, impartial, and completely
unengaged ought to be designated as a receiver. Such an individual ought to not
have any stake within the debated property. By and large, parties to the suit
are not designated as a collector by the court. But in uncommon circumstances,
a party to suit can be appointed as a receiver.[6]
When can a receiver be appointed?
The court can
designate a collector at whatever point the court is of the supposition that
either party ought to not hold the property in dispute. The court can designate
a collector before or after a decree and can expel any person from the
ownership or custody of the property and commit the same property in the care
or management of the receiver. Under the code itself, the receiver can be named
to avoid the closes of equity from being defeated. Additionally, for the
execution of a decree, the court has the power to appoint a receiver. There are
provisions in special acts that give for the appointment of a receiver by the
court.
What is the method of appointment of a
receiver?
The handle of appointment of a receiver is
given by the courts in their respective court rules. The high court has the
control to make rules for the superintendence and control of the subordinate
courts. For occasion,[7]
1. Application for appointment should be made
in writing and should be supported by affidavit.
2. Receiver
other than the official receiver has got to provide security.
3. The security
is to be given to the satisfaction of the registrar. 4. He has to give personal
bonds with the number of surety required by the registrar. The personal bond
will be double the sum of the annual rental value of the property or the entire
value of the property which the recipient is going to administer.
4. Inside a week of appointment, the receiver
will need to submit a report giving the details regarding the property such as
inventory of property or books of account etc.
6. The registrar will allow directions on
where to contribute the money received by the receiver from the property.
Generally, such money is submitted in scheduled banks or government bonds.
What are the powers of the receiver?
Receivers are
entitled to remuneration as settled by the court for the administrations
rendered by them. Too, a receiver should be given for the misfortune or costs
caused by him for maintaining the property. Under arrange 40, the court can
settle the compensation to be paid to the recipient for the administrations
given by him.[8] The court
can pass a common or particular arrangement with respect to the same. Under
order 40 rule powers of the receiver are given as follows:
1. Collection of rents and benefits emerging
out of the property.
2. Application and transfer of such rents and
profits.
3. Execution of
reports as the proprietor himself.
4. Organized and
protect the suit.
5. Such powers
as the court may consider fit.
Also, there are
backhanded powers that a recipient appreciates being the hand of the court. For
illustration, In the event that an individual discourages or meddling with the
receiver’s right to ownership, it will sum to obstruction in a court continuing
and such a person can be made obligated for scorn of court. Similarly, property
in the hands of the receiver cannot be attached without the takeoff of the
court.
What are the obligations of the receiver?
Under order 40,
the duties of a receiver are given as follows:
1. Furnish security to account for what he
will receive from the property as income.
2. Yield
accounts (half-yearly) for such period or form as coordinated by the court. The
account essentially incorporates the wage received and costs caused for the
security and preservation of the property.
3. Pay the sum
due to the court.
4. Take duty for
any lessening in the value of the property since of the receiver’s willful
negligence.
5. Release the
duties actually and should not delegate or relegate any of the rights depended
on him by the court.
The receiver
should satisfy all the obligations and duties entrusted to him by the court.
Otherwise, the court can take activity against him and make him personally
liable for any misfortune which might occur due to his negligence or wilful
disappointment to secure and protect the property.
What are the liabilities of a receiver?
The receiver is
bound in keeping down the expenses and taking care of the property in his
possession as a judicious man would observe in association with his possess
property under comparable circumstances. According to Order 40, when a receiver
fails:
1. To yield the
reports as indicated by the court or,
2. To pay the sum due to him as coordinated by
the court or,
3. Causes misfortune to the property due to
net negligence.
4. Any other obligation which court
coordinated him to do,
The court may
order the attachment of property of the receiver to recuperate the loss caused
due to his wilful default or negligence. The court, after recovering all the
losses from the proceeds gotten after offering the receiver’s property, will
pay the balance (in the event that any) to the receiver.
Conclusion: the receiver plays a vital
part whenever the court requires the collector to oversee the subject matter in
a suit to ensure and protect it till the time, the court orders the suit. The
recipient is an officer of the courts and the subject matter overseen by him is
considered to be in the care of the law. The court appoints a receiver when the
court is of the supposition that not one or the other of the party ought to
manage the property till the time the matter is chosen. Any individual can
become a receiver given they satisfy the prerequisites set by the court. A
receiver ought to be of unbiased, free and uninterested character who has no
stake within the subject matter and can oversee the property fair as a
judicious man will do with his claim property. Court has vested certain powers
and duties on the receiver which he ought to utilize to manage the property in
a perfect way the most perfect way possible. The recipient ought to use caution
whereas making a vital choice related to the subject matter as he is personal.
[1] 1991 CLC
1573
[2] The code
of civil procedure Code,1908 (Act 5 of 1908)
[3] AIR 1949
AII. 112=ILR 1948 AII. 432 (DB)
[4] Mohammad
Saiful Islam, Specific Relief Act Published by KBH, 3RD Edition
page-147
[5] Singh, Avtar,
Contract and Specific Relief, Published By Eastern Book Company, 10th
Edition. At Page-921
[6] Order 40
of Civil Procedure Code, 1908
[7] Khan Raza
Said Akbar, The Specific Relief Act, PLD Publisher, seventh Edition at page 241.
[8] Shah Jubaer,
Guiding Principles of Equity, Published by Panshi, 2nd Edition page-124
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