Kerala High Court
Parvathi Chellamma And Anr. vs Hussan Pillai Mohammed Abdul Khader And ... on 26 October, 1972
Equivalent citations: AIR 1973 KERALA 208
ORDER K. Bhaskaran, J.
1. The revision petitioners are persons who were not parties to the suit, but who got themselves impleaded as defendants 8 and 9 alleging that their property. 9.85 acres in extent, was placed under the custody of the receiver, and that over that property the parties to the suit had absolutely no manner of right, possession or title. They moved the trial Court by a petition under Order 40. Rule 1 (2). C. P. C. for vacating the order of appointment of receiver in so far as it related to the item in question and also praving for redelivery of the property to them.
2. The learned Munsiff in and by an elaborate and well-considered order allowed the petition. The aggrieved party took up the matter in appeal. The learned District Judge after having observed:--
"As I stated at the outset the learned Munsiff has gone into the question elaborately discussing the various documents and he has come to the conclusion that the stranger petitioners were in possession of the properties and that they are entitled to redelivery."
added that-
"I may at once state that the petition is not one for redelivery. The petition is filed under Order 40. Rule 1 which deals with appointment of receivers."
The learned District Judge concluded stating-
"..... I agree with the learned Counsel for the appellant in holding that the learned Munsiff was not correct in vacating the receiver order and directing redelivery in an application under Order 40. Rule 1 (2). The rights of the respondents here are not affected by the order of appointment of receiver in so far as they are not parties to the suit-Since no prejudice is caused to the respondents the appeal has only to be allowed and the order of the lower court vacated."
Whether the appeal was disposed of accepting the contentions of the appellant before the learned District Judge is now in controversy. In fact the submission made by the learned counsel appearing for the revision petitioners is that as a matter of fact the appeal was disposed of without hearing the appellant before the District Court. In ground No. 3 of the memorandum of civil revision petition it has been stated-
"The case was posted for hearing In the court below on 7-3-1970 and on that day the appellant's advocate prayed for adjournment on the ground that the counsel is not well. The respondent's counsel was present in court and was ready to argue. The prayer for adjournment was refused and the case was taken up for disposal. But 4 days later the judgment is pronounced allowing the appeal. The procedure adopted by the court is wrong, arbitrary and violates all principles of natural justice. the appellant has filed review before the court below on 31-3-1970. The same Judge who decided the case entertained the review and issued notice on it but later he has been transferred to another court and the matter has not therefore been finally disposed of by him."
However, I need not go into that question, as the successor-in-office of the learned District Judge, who passed the judgment, has chosen not to go into the matter and dismissed the petition. It is not also strictly relevant for the purpose of a decision in this civil revision petition.
3. The reasoning given by the learned District Judge for setting aside the order that was passed by the learned Munsiff after due deliberations does not appeal to me. It is rather strange that the learned District Judge should have taken the view that the revision petitioners were not affected by the order of appointment of receiver when, without any manner of right whatsoever, the receiver took possession of the property belonging to the revision petitioners. It is precisely for the reason that they, who were not parties to the suit were adversely affected by the order of appointment of receiver, that they filed a petition for redressing their grievances by seeking redeliyery of the property. In a case like this, as observed by Va-radaraja Iyengar. J., in Chiruthakutty v. Chandukutty Nambiar. (1958 Ker LT 204)-
"When property of a third party is interfered with by an officer of the Court like the Receiver, the party had ordinarily two remedies. He may apply to the Court for a summary order restraining the receiver from interfering or he may ask leave of the Court to permit him to sue the Receiver and restrain him from interfering and for any other appropriate relief. When the party adopts the summary remedy, but the Court refused to direct its officer not to interfere with the party's possession, it in effect removed him from possession or custody within the meaning of Order 40. Rule 1 (b) and such order is appealable under Order 43. Rule 1 (s)."
In paragraph 7 of the judgment in Ryru Nair v. Govindan Nair, (1960 Ker LT 955). Raghavan J., as he was then, has summarised the position as follows:--
"Now I shall give my reasons for the above view. The order refusing to appoint a receiver is only a counter-part, If I may use that expression, of an order appointing a receiver. Therefore, such an order refusing to appoint a receiver will fall under Order 40, Rule 1 equally as an order appointing a receiver and I do not think that there will be any dispute to this position. Similarly to my mind it is clear that an order discharging a receiver and an order refusing to discharge a receiver are but the obverse and the reverse of the same coin and if the former falls under Order 40. Rule 1 under the Federal Court Ruling. I fail to understand how the latter does not fall under the same Order 40. Rule 1 "
4. Sub-rule (2) of Rule I of Order 40. C. P. C. prohibits the court from removing from the possession or custody of property any person whom any party to the suit has not a present right so to remove. The finding of the learned Munsiff is that the revision petitioners were the persons entitled to possession of the property and they were in actual possession. At the instance'. of the parties to the suit the receiver was appointed in respect of 9.85 acres of land which is claimed by the revision petitioners as belonging to them. Power, conferred on the Court to "remove any; person from the possession or custody of the property" under Clause (b), Sub-rule (1), Rule I, Order 44, C. P. C. does not extend to strangers in possession of property to which the parties to the suit do not have a present right to possession in view of the exclusion provisions contained in Sub-rule (2) Rule I, Order 40. C. P. C.
5. The learned Munsiff having found that his order in appointing receiver in so far as it related to the dis-puted item (claimed by the revision petitioners) was wrong, and vacated it to that extent, the only right and proper course that was open to the learned District Judge was to confirm that order and dismiss the appeal. The appeal was allowed on a totally untenable ground and. therefore, this revision has to be allowed. Accordingly this revision is allowed, the judgment of the court below is set aside and the order of the learned Munsiff is confirmed. Though this is a case where the revision petitioners deserve to get their costs, inasmuch as the legal representatives of the first respondent have not chosen to enter appearance and contest the matter in this Court. I direct the parties to bear their respective costs.