Mukerji, J.
1. This appeal has bean preferred from certain orders passed by the Subordinate Judge, First Court, Backergunge, on 17th February, 26th February and 1st March 1927, by which the learned Judge appointed a receiver in respect of properties which form the subject-matter of a suit now pending in his Court.
2. It is necessary, in order to deal with the contentions that have bean urged on behalf of the appellant in this appeal, to set out a few facts. One Babu Raj Chandra Roy Chowdhury died leaving three sons and two daughters. For the purposes of this appeal we are concerned with one of his sons, namely, Babu Behary Lal Roy Chowdhury, and the two daughters named Adya Sundari and Bidya Sundari. Plaintiffs 1 and 2 are two of the sons of Babu Behary Lal Roy Chowdhury and defendant 1 is another son and the plaintiffs 3 and 4 are the sons of a daughter of a predeceased son of the said Babu Behary Lal Roy Chowdhury. Defendant 2 is Bidya Sundari, herself and defendant 3 is a daughter of Adya Sundari. Behari Lal died on 10th March 1917 leaving considerable properties. He left a will which was executed shortly before his death. By this will he had made provisions for paying off certain debts, had given directions as to certain bequests and monthly legacies, enjoined the erection of two temples, made arrangements for certain pujas and ultimately left the properties moveable and immovable to plaintiffs 1 and 2 and defendant 1. Defendant 1 was appointed executor under the will. In 1918 defendant 1 applied for probate. This application was resisted by plaintiffs 1 and 2, and an administrator pendente lite was appointed in the course of those proceedings. Ultimately a compromise was reached between the parties in which, certain terms were agreed upon and were filed in Court. Of these terms it is necessary only to refer to those that are contained in paras 1, 7, 8 and 9 of the terms of settlement. Para 1 states:
Caveats entered by Sushil Kumar Roy and Jatindra Kumar Roy (plaintiffs 1 and 2) are to be withdrawn and probate of the will to be granted to Surendra Kumar Boy (defendant 1) on his proving the will in solemn form, and thereupon the administrator pendente lite is to be discharged.
3. Para. 7 states:
Until the debts have been paid off and provision made for payment of legacies and construction of mundirs as provided by Clause 5 hereof the estate will be managed by Surendra Kumar Roy in consultation with Sushil Kumar Roy and Jatindra Kumar Roy or their respective agents authorized in their behalf by a power-of-attorney.
4. Para. 8 runs thus:
After the debts have been paid and provisions have been made for payment of the legacies the estate will be divided equally between the three brothers Sushil Kumar Roy, Jatindra Kumar Roy and Surendra Kumar Roy, and each will be entitled to collect his share of the rents from the zamindari properties separately and to deal with his own share.
5. Para. 9 runs in these words:
Babu Surandra Kumar Roy will be at liberty to go to the mofussil accompanied by an officer of the estate to be nominated by Jatindra and Sushil, and all collections made by him on accouat of nazar (voluntary donation) should be spent by him for feeding Brahmins and other people at Barisal for the spiritual benefit of the testator and on rendering an account in that behalf.
6. On these terms being filed the will was proved in solemn form : the caveat was withdrawn, a decree was passed on 30th August 1918, and in accordance therewith the defendant I obtained probate on 19th June 1919.
7. The present action which his given rise to the proceedings out of which this appeal has arisen was commenced on 28th October 1925. Essentially, it is a suit for ascertainment of the estate left by the testator Behary Lal, for the due administration thereof, for partition, for taking accounts from defendant 1 in respect of his dealings in connexion with the estate, for recovery of the moneys, papers, etc., due from him and for other reliefs. There is also a prayer, amongst the prayers in the plaint, for the appointment of a receiver. As regards this prayer the learned Subordinate Judge first of all made an order on 3rd November 1925 that necessary orders would be passed on the plaintiffs' filing an affidavit within three days. Thereafter affidavits, counter-affidavits and affidavits in reply were filed on behalf of the parties and arguments were heard on the question of the appointment of the receiver on several days till 10th December 1925. On 11th December 1925 a petition was filed on behalf of plaintiffs 1 and 2 and defendant 1, asking that the suit might be referred to an arbitrator. On 15th December 1925, defendants 2 and 3 appeared and by a separate petition made a prayer for a reference of the case to an arbitrator. On 17th December 1925 plaintiffs 3 and 4 appeared and also prayed for a reference to an arbitration. In accordance with these prayers, on 21st December 1925, the learned Subordinate Judge appointed Rai Bepin Chandra Das Gupta Bahadur, a retired Subordinate Judge, an arbitrator to decide the suit in the terms of the petitions that had been filed.
8. It may be stated here that the task which this gentleman has undertaken is purely a matter of love, and it is gratifying to note that as regards his conduct in connexion with the arbitration proceedings nothing has been said on behalf of any of the parties before us. It would be tedious to set out the various proceedings that took place before the arbitrator. It is sufficient to say that there has been some delay either intentional or unavoidable, on the part of defendant 1 to produce the papers that the arbitrator wanted, and in consequence of this delay applications had from time to time to be filed before the Court, reports had to be submitted by the arbitrator to the Court and orders, had also frequently to be passed against defendant 1 for the production of the said papers. On the 25th June 1926, plaintiff 1 filed a petition in Court supported by an affidavit for the appointment of a receiver. Thereafter again heaps of affidavits, counter affidavits and affidavits in reply were filed on behalf of different parties. Various charges were made on behalf of plaintiff 1 stating that defendant 1 was causing delay in the matter of the arbitration proceedings, had taken up an obstructive attitude with reference thereto, and that he had been guilty of negligence, misappropriation of funds, fraud, fabrication of accounts and things of that sort.
9. For our present purposes we do not propose to go into all these in detail. The arbitrator was asked by the Court to submit his report with regard to this application for the appointment of a receiver. On the 6th December 1926, the arbitrator submitted a report; just the sort of report that we should have expected from him when he had not yet finished his enquiry with regard to the accounts. In this report he stated that there was undoubtedly delay on the part of defendant 1 in the matter of submission of account papers and in spite of repeated orders and verbal request the papers had not been filed in time. As regards the charge that bejabeda collection had been made by defendant 1, the arbitrator stated that no definite conclusion could be arrived at with regard to this matter without a local enquiry. He stated that defendant 1 and his pleaders had assured him that there would be no delay in future with regard to the submission of the account papers As regards misappropriation he stated that it was premature to pass any opinion on that point before the accounts were examined, and as regards other charges also he was not able nor willing to pronounce any definite opinion. Thereafter we find some further affidavits were filed on behalf of the parties and ultimately, on the 17th February 1927, the learned Judge made an order appointing a receiver in respect of the properties which formed the subject-matter of the suit. In pursuance of this order one Babu Bash Behary Chowdhury was subsequently appointed as such receiver on the 26th February 1927, and he having furnished the security bond on the 1st March 1927, a writ was issued in his favour. From these orders the present appeal has been preferred on behalf of defendant 1.
10. The contentions that have been urged on behalf of the appellant are five in number. To put them as nearly in the words of the learned advocate for the appellant as possible they are : first, that the Court had no jurisdiction to entertain the application for the appointment of a receiver after having referred the whole dispute to arbitration in accordance with the prayer of all the parties; second, that no case has been made out for appointment of a receiver at this stage of the proceedings when the arbitration is being proceeded with; third, that in any view of the case no sufficient grounds have been made out for appointing a receiver which will have the effect of removing defendant 1 from his office as executor acting under the will of the deceased testator; fourth, that assuming a proper case has been made out an outsider should not be appointed as receiver; and fifth, that if an outsider is to be appointed the present incumbent is not a fit and proper person who should be appointed as such.
11. As regards the first contention reference has been made on behalf of the appellant to Schedule 2, para. 3, Civil P.C., and to the prayer that is in the plaint for the appointment of a receiver, to the order sheet in the suit as showing that arguments on the application for the appointment of a receiver had been heard in part at the time when the reference was made, and to the teems of the petition which, it has been contended, go to show that all matters arising out of the suit had been referred to the arbitrator for decision and disposal. On behalf of the respondents this argument has been sought to be met by the technical plea that there has been no order extending the time within which the award is to be submitted by the arbitrator, and that the arbitrator is now dealing with the matter as a commissioner and not as an arbitrator and that, therefore, the Court had ample jurisdiction to deal with the question of appointment of a receiver. This objection of the respondents in my opinion cannot be allowed to prevail in view of para. 8, Schedule 2, Civil P.C., which enables the Court to enlarge the period fixed for the completion of the award even after it has expired, and also in view of the fact that there is really nothing to indicate that the arbitrator is not still acting as such. The appellant's contention also, on the other hand, does not appear to me to be well founded. There is authority for the proposition that where on account of the arbitration clause in a partnership agreement or lease or the like, by which the parties agreed to refer all their disputes to arbitration, the Court stays proceedings pending before itself, it retains jurisdiction to deal with a prayer for injunction or for a receiver : Law v. Garret [1878] 8 Ch. 26; Compagnie du Senegal v. Woods [1883] 32 W.R. 111; Hasky v. Windham [1889] W.N. 108; and Piri v. Roncoroni [1892] 1 Ch. D. 633. In the case of Willesford v. Watson [1873] 8 Ch. 473, Lord Selborne expressed the view that, if since the passing of the Common Law Procedure Act, parties chose to determine for themselves that they will have a forum of their own selection instead of resorting to the ordinary Courts, a prima facie duty is cast upon the Courts to act upon such arrangement. That the plaintiff's right to a receiver and injunction is not a matter to refer can hardly be disputed. As regards injunction, there is clear authority, see Willesford v. Watson [1873] 8 Ch. 473, where Lord Selborne says:
It is said that the arbitrator could not grant an injunction. No doubt he could not grant an injunction; but he might say that the thing was not to be done and there being liberty to apply to this Court, this Court would then grant the injunction.
12. As regards receiver the appointment of a receiver made by an arbitrator will not only be difficult of being enforced as between the parties themselves but would be utterly ineffectual as regards third parties. Of course, it is open to the arbitrator to say that some person should be put in charge or management of the properties, and the Court may then proceed to make the order appointing a receiver. There may be eases where the parties having agreed to refer all their disputes to arbitration the Court may wait until the questions arising in the action are decided by the arbitrator and then consider whether the prayer for receiver should be granted or not. as was pointed out in Zalinoff v. Hammond [1898] 2 Ch. 92. It being the duty of the Court to act upon the agreement entered into by the parties themselves it will have to be ascertainted in each individual case as to what was actually referred. If the Court finds that the question of management interim was also referred it may defer the consideration of the question of appointment of a receiver in the view that the parties by agreement between themselves have disentitled themselves to the auxiliary relief which otherwise they could have from the Court. In the petition for reference the words used are:
to do all works in connexion with the subject-matter of the suit and to decide the suit.
13. These words, in our opinion, do not include the passing of orders for interim protection. We are accordingly of opinion that the appellant's first contention cannot be allowed to prevail.
14. The second and the third contentions may be taken up together. We have been addressed at great length and in detail on behalf of the parties upon the various charges that have been made or sought to be refuted. We purposely refrain from expressing any opinion on these charges. We are of opinion that the findings of the Subordinate Judge on these charges are not to be taken as being approved of by us. We do not blame the 'learned Judge for having recorded these findings as we can realize how unhappy his position must have been when he was incited to arrive at his conclusions on the3e charges, and how helpless he must have felt when much against his will he had to deal with them at a stage at which they could not be dealt with with any degree of satisfaction. It was only affidavit evidence that was before him, and the charges relate to questions of accounting on which the arbitrator has to pronounce the final opinion. Judging from the arguments that have been advanced before us we can form some idea of the acrimonious nature of the instructions which the learned advocates had from their clients, and we feel as unhappy on hearing the arguments as the learned Judge must have felt. We consider it wholly unnecessary to go into these matters and we desire to repeat and emphasize the warning which the learned Judge has given to the arbitrator not to pay any heed to his findings on these charges. We are sure, knowing as we do who the arbitrator is, that he will proceed strictly on his own view in respect of these charges. The appellant undoubtedly is an executor who is till now acting under the probate and in so far as the question arises as to whether a receiver should be appointed which if done, will have the effect of removing him from the management of the estate the principles laid down by Woods, J., in the well-known case of Haines v. Carpenter, quoted at length in the footnote to para. 707 of High on Receivers will apply:
A strong case must be made out to induce the Court to dispossess a trustee or executor who is willing to act.
15. See also Woodroffe on Receiver 2nd Ed. (pp. 144-146). The position of the appellant, however, is somewhat different from that of an ordinary executor. Under the terms of settlement to which I have referred he was to act in consultation with plaintiffs 1 and 2. That was the condition on which the contest in the probate proceedings was withdrawn. That condition has now become impossible. This, in our opinion, is sufficient in the circumstances of the present case to justify the appointment of receiver Plaintiffs 1 and 2 are interested in two-thirds share of the properties which would be left after the legacies are paid and the other directions in the will are carried out, and their case is that the appellant is delaying the administration in order to keep the properties in his hands as long as possible. To a certain extent and in a certain sense the appellant occupies a position adverse to plaintiffs 1 and 2 and the case bears some analogy to the one cited in High on Receivers, 4th Edn. p. 869, para. 719 Nearly ten years have elapsed since the testator's death, and it cannot be said that the testator intended that the partition of the properties would be so long delayed. The administration in any event has not been a successful one. This, in our opinion, is sufficient to justify the order which has been made.
16. As regards the fourth contention : we have done our best to induce the respondents to nominate one of them as a joint receiver with the appellant, but we are sorry to note that we have failed. In the circumstances an outsider must necessarily have to be appointed. The fifth contention has no substance. The appellant took no part in the selection of the receiver though asked by the learned Judge. There is really nothing that can be urged against the gentleman who has been appointed. The comment that has been made as regards one hurry with which the receiver entered into possession is not deserved as the real reason why he asked to be put immediately in possession was that the date for the payment of Government revenue was near at hand.
17. The appeal accordingly fails and must be dismissed with costs, hearing-fee being assessed at 6 (six) gold mohurs to be divided between the two sets of respondents, viz., plaintiff 1 and plaintiffs 2, 3 and 4. The receiver will get his costs from out of the estate.
18. It is necessary now to give some further directions to the receiver in connexion with this case. We understand that defendant 1 had paid the sum of Rs. 6,587-10-11 in accordance with our order passed on the 17th March 1927. It was understood, when this order was made by us, that the payment which the appellant would make of the Government revenue in accordance with this order would be in the nature of an advance to the estate. The receiver will now proceed to make the collections in the estate and out of the moneys that he will be able to collect he will, as early as possible, pay back to the appellant the said sum of Rs. 6,587-10-11 which the appellant has advanced. If it be not possible for the receiver to pay back the said amount to the appellant within a reasonable time, say within two months from to-day, he will be at liberty tomorrow the amount on such advantageous terms as to interest as may be sanctioned by the learned Subordinate Judge, The amount aforesaid will have to be paid to the appellant within that time.
19. Before parting with the case we should like to make a further direction. That is in connexion with the paper-book that has been prepared in this appeal. It has been prepared in the office of Babu Surendra Nath Das Gupta, The learned vakil had very little time at his disposal for preparing the type-written paper-book. It has been done in such a way as deserves our commendation. There are very few mistakes and the papers have all been well arranged. We are told the Court office had nothing whatsover to do with the preparation of this paper-book. If so any amount that has been deposited for1 work to be done by the Court office, but has not been so done, will now be returned to the learned vakil.
Roy, J.
20. agreed in the order proposed.