Order-40 Appointment Of Receiver

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Order-40 Appointment Of Receiver
Total Sections 158
Enforcement Year 1908
State or Central Central
Editor Template:USERNAME
ASSN: 20637

CODE OF CIVIL PROCEDURE, 1908

5 of 1908

[21st March 1908]

CONTENTS

ORDER 40 :- APPOINTMENT OF RECEIVERS

1. Appointment of receivers

2. Remuneration

3. Duties

4. Enforcement of receivers duties

5. When Collector may be appointed receiver


As amended up to date by Amendment Act No. 104 of 1976 as assented by the President of India on 10th September, 1976 An Act to consolidate and amend the laws relating to the procedure of the courts of civil judicature Whereas it is expedient to consolidate and amend the laws relating to the Procedure of the courts of civil judicature.


1. Appointment of receivers :-

(1) Where it appears to the Court to be just and convenient, the Court may by order

(a) appointment a receiver of any property, whether before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver; and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such those powers as the Court thinks fit.

(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

HIGH COURT AMENDMENTS

Allahabad.-In Order XL, in rule (1), in sub-rule (2), after the words "any person", insert a comma and the words "not being a party to the suit".

[Vide Notification No. 2875/35(a)-5(2), dated 10th July, 1943].

Karnataka.-Same as in Allahabad.


2. Remuneration :-

The Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver.


3. Duties :-

Every receiver so appointed shall (a) furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property; (b) submit his accounts at such periods and in such form as the Court directs; (c) pay the amount due from him as the Court directs; and (d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras with the following modifications:(i) in clause (a), for the words "in the movable property", substitute the words "in such form and". (ii) in clause (b), for the words "at such periods and in such forms as", substitute the words "at such time and in such form as the Court may direct or", (w.e.f. 30-3-1967)

Kerala.-Same as in Madras with the modification that in clause (a), for the word "movable"; substitute the word "immovable".

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

Madras.-In Order XL, in rule 3, for clauses (a) and {b), substitute the following clauses, namely: "(a) unless the Court otherwise orders, furnish security in the movable property for such amount as the Court thinks fit duly to account for what he shall receive in respect of the property of which he is appointed a receiver.

(b) submit his accounts at such periods and in such forms as may be prescribed."

[Vide P Dis. No. 577 of 1944.]


4. Enforcement of receivers duties :-

Where a receiver (a) fails to submit his accounts at such periods and in such form as the Court directs, or

(b) fails to pay the amount due from him as the Court directs, or

(c) occasions loss to the property by his wilful default or gross negligence, the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from his or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras. Bombay.-In Order XL, for rule 4, substitute the following rule, namely: "4. Enforcement of receivers duties.-(1) If a receiver fails to submit his account at such periods and in such form as the Court directs, the Court may order his property to be attached until he duly submits his accounts in the form ordered.

(2) The Court may, at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion, at any time not beyond three years from the date of his discharge by the Court, make an inquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss to the property has been occasioned by his willful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceeding and the receiver shall be made parties to any such inquiry. Notice of the inquiry shall be given by registered post prepaid for acknowledgment to the surety, if any, for the Receiver, but the cost of his appearance shall be borne by the surety himself, unless the Court otherwise directs Provided that the Court may, where the account is disputed by the parties and is of a complicated nature, or where it is alleged that loss has been occasioned to the property by the wilful default or gross negligence of the Receiver, refer the parties to a suit. In all such cases, the Court shall state in writing the reasons for the reference.

(3) If the Receiver fails to pay any amount which he has been ordered to pay under sub-rule (2) of this rule, within the period fixed in the order, the Court may direct such amount to be recovered either on the security (if any) furnished by him under Rule 3, or by attachment and sale of his property, or, if the property has been attached under sub-rule (1) of this rule, by sale of the property so attached, and may apply the proceeds of the sale to make good any amount found due from him or any loss occasioned by him, and shall pay the balance (if any) of the sale proceeds to the Receiver." (w.e.f 1-10-1983)

Karnataka.-Same as in Madras with the following modification:In sub-rule (1), for the words "in the form ordered", substitute the words "in the manner ordered", (w.e.f. 30-3-1967)

Kerala.-Same as in Madras with the addition of the following marginal note to the rule: "Enforcement of receivers duties"

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XL, for rule 4, substitute the following rule 4, namely: "4. (1) If a receiver fails to submit his accounts at such periods and in such form as the Court directs, the Court may order his property to be attached until he duly submits his accounts in the form ordered.

(2) The Court may, at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion, at any time make an enquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss to the property has been occasioned by his willful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceeding and the receiver shall be made parties to any such enquiry. Notice of the enquiry shall be given by registered post to the surety, if any, for the receiver, but the cost of his appearance shall be borne by the surety himself unless the Court otherwise directs: Provided that the Court may, where the amount is disputed by the parties and is of a complicated nature or where it is alleged that loss has been occasioned to the property by the wilful default or gross negligence of the receiver, refer the parties to a suit. In all such cases the Court shall state in writing its reasons for the reference.

(3) If the receiver fails to pay, any amount which he has been ordered to pay under sub-rule (2) of this rule within the period fixed in the order, the Court may direct such amount to be recovered either from the security (if any) furnished by him under rule 3, or by attachment and sale of his property, or, if his property has been attached under sub-rule (1) of this rule, by sale of the property so attached, and may apply the proceeds of the sale to make good any amount found due from him or any loss occasioned by him and shall pay the balance (if any) of the sale proceeds to the receiver." [Vide P Dis. No. 60 of 1933.]


5. When Collector may be appointed receiver :- Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector appoint him to be receiver of such property.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XL, after rule 5, insert the following rule, namely:"6. Where the property belongs to a co-operative society, registered under an appropriate statute or to a member of any such co-operative society, and the Court considers that the interests of those concerned will be promoted by the management thereof by an officer of the Co- operative Department, the Court may with the consent of such officer, appoint him to be receiver of such property." (w.e.f. 8-1-1987)

Madras.-In Order XL, after rule 5, insert the following rule, namely:"6. Where the property belongs to a co-operative society registered under the Madras Cooperative Societies Act or to member of such co- operative society, and the Court considers that the interest of those concerned will be promoted by the management of an officer of the Co -operative Department, the Court may, with the consent of the officer, appoint him to be receiver of such property."

Andhra Pradesh.-In Order XL, after Yule 6, insert the following rule, namely: "7. Where a receiver had been appointed by a Court under rule 1 of this Order, no such receiver may be sued by any person whether he is party to the said suit or not, except with the leave of the Court appointing the receiver or successor Court on an application made in this behalf and the notice of which is served upon the receiver and all other persons who may, in the opinion of the Court be interested in the subject-matter of the suit" Bombay.-After Order XL, insert the following Order, namely:

"ORDER XLA CAVEAT RULES”.