Andhra HC (Pre-Telangana)
Jalligampala Prakash Rao vs Food Corporation Of India Rep., By Its ... on 11 March, 2003
Equivalent citations: 2003(6)ALD10, AIR 2003 (NOC) 349 (AP), 2003 A I H C 2180 (2003) 6 INDLD 540, (2003) 6 INDLD 540
JUDGMENT P.S. Narayana, J.
1. This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of the Code of Civil Procedure, hereinafter referred to as "Code" for short, aggrieved by the order dated 14-2-2003 made in E.P. No. 20/2002 in O.S. No. 124/87 on the file of Senior Civil Judge, Pithapuram.
2. The 4th Judgment-debtor in the said E.P. is the appellant and Food Corporation of India, represented by its District Manager, Kakinada, East Godavari District, shown as the 1st respondent in the Appeal is the only contesting respondent/Decree-holder/plaintiff. It is brought to my notice that the Food Corporation of India being vexed with non-realisation of the amount due to it ultimately had resorted to filing the present E.P. under Section 51(d) of the Code to appoint a Receiver to conduct auction of the leasehold rights of the E.P. schedule rice mill. It is stated that the Decree-holder-Food Corporation of India filed E.P. No. 25/2002 for attachment and sale of schedule rice mill and the property was brought to sale and the 4th Judgment-debtor who is in possession of the rice mill and capable of paying the lumpsum amount had paid an amount of Rs. 30,000/- in instalments and has been causing obstruction to the bidders to participate in the auction. In the said circumstances, the Food Corporation of India was constrained to file the E.P. aforesaid for appointment of a Receiver and to conduct auction of the leasehold rights of the E.P. schedule rice mill. The appellant herein, 4th Judgment-debtor, alone had contested the matter stating that the licence stands in his name only and the said licence does not belong to J. Ramarao and hence no Receiver can be appointed. The learned Senior Civil Judge, Pithapuram, by exercising power under Section 51(d) of the Code and also taking into consideration the fact that certain amounts already had been paid and the rest of the amount is payable by the appellant/Judgment-debtor, had ultimately allowed the E.P. appointing Sri B.V. Ram Das, Advocate, as Receiver to take possession of the E.P. schedule rice mill and conduct auction of the leasehold rights of the said rice mill and to deposit the said amount till further orders of the said Court. Aggrieved by the same, the 4th Judgment-debtor had preferred the present Civil Miscellaneous Appeal.
3. Sri E.V.V.S. Ravi Kumar, the learned counsel representing the appellant had submitted that appointment of a Receiver to take possession of the property or to conduct auction which will amount to virtually dispossessing the party in possession of the property is a very harsh remedy. The learned counsel also submitted that the suit was filed against J. Rama Rao and not against him and hence he has no obligation to discharge the debt incurred by the said J. Rama Rao. The learned Counsel also further submitted that even otherwise inasmuch as the appellant/4th Judgment-debtor has been making payments, in stead of giving further opportunity, resorting to the appointment of a Receiver which is definitely a harsh remedy, is bad in law. The learned Counsel also pointed out that the reasons recorded by the learned Judge do not satisfy the ingredients under Order 40 Rule 1 of the Code.
4. Per contra Mrs. C.V. Vineeta Reddy, counsel representing the Food Corporation of India, with all vehemence had contended that even in the Grounds of Appeal, the appellant/4th Judgment-debtor had committed himself that he is liable to pay the amounts. The learned counsel also submitted that since the Food Corporation of India being vexed since it was unable to realize the money due from the Judgment-debtors, ultimately in view of the facts and circumstances explained, the relief for appointment of Receiver for conducting auction of the leasehold rights of the E.P. schedule rice mill had been prayed for. The learned counsel also had drawn my attention to an order passed in C.M.P. No. 10139/2002 in C.R.P.S.R. No. 5653/2002 and had contended that the appellant/4th Judgment-debtor is resorting to frivolous litigations without making further payments though he is capable of doing so and unfortunately the Food Corporation of India is unable to realize the public money and in this view of the matter, the impugned order is perfectly justified and does not deserve to be disturbed in any way.
5. Heard both the counsel and also perused the material available on record.
6. Section 51 of the Code deals with Powers of Court to enforce execution and Section 51(d) of the said Code specifies that subject to such conditions and limitations as may be prescribed, the Court may on the application of the decree-holder order execution of the decree by appointing a Receiver. As can be seen from the language of Section 51 of the Code, different modes had been specified and one of the modes of execution may be by appointing a Receiver also. The opening words of Order 40 Rule 1 of the Code dealing with Appointment of Receivers are "Where it appears to the Court to be just and convenient ...". It is needless to say that by virtue of Section 141 of the Code, the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. No doubt, the explanation specifies that in this Section the expression "proceedings" includes proceedings under Order 9, but does not include any proceedings under Article 226 of the Constitution. Hence, the power of the Court to appoint a Receiver in Execution Proceedings cannot be in any way doubted. In CHERIA KUNHI SHRIDEVI AMMA TIRUMUMPU Vs. VALIA NARAYAN TIRUMUMPU, AIR 1929 MADRAS 20 it was held that while Order 21 Rule 11 Clause (4) gives the process of execution by appointing a Receiver, the mode of appointing a Receiver is given in Order 40 Rule 1 and the Order to appoint Receiver in execution proceedings is Order 40 Rule 1 of the Code. It was further observed that except in a case where the decree itself directs the appointment of a Receiver, no decree-holder has a right to ask for the appointment of a Receiver only and it would always be an alternative mode to the relief mentioned in Clause (2)(j) of Order 21 Rule 11 i.e., attachment and sale. In ARUMUGHA THEVAR Vs. PALANIAMMAL AND OTHERS, the same view that a Receiver can be appointed in execution proceedings had been expressed.
7. In the light of the above legal provisions and the ratio in the decisions cited above, there cannot be any doubt that even in the execution proceedings a Receiver can be appointed. The next question is whether it is just and convenient to appoint a Receiver in the present case in the facts and circumstances of the case and whether the learned Judge had recorded the reasons in detail so as to sustain the present impugned order. At paragraph 7 of the impugned order, the learned Judge had observed:
"As could be seen from the record, after filing counter J.Dr. has paid amount of Rs. 7,000/- on 31-12-2002 and Rs. 5,000/- on 9-1-2003 and Rs. 5,000/- on 28-1-2003 and at the time of hearing Rs. 5,000/- on 2-2-2003 and thus paid an amount of Rs. 22,000/- after filing the counter and the affidavit averments also discloses that even by the time of filing of the above application, 4th J.Dr. paid a sum of Rs. 30,000/- which is not disputed. Therefore, the J.Dr. has paid in total Rs. 52,000/- but the warrant amount is above Rs. 2,60,000/-".
The only ground on which the learned Senior Civil Judge, Pithapuram thought of appointing the Receiver is the impracticability in realizing the decretal amount from the appellant/4th Judgment-debtor. It is needless to say that these reasons recorded by the learned Senior Civil Judge, Pithapuram, definitely are not sufficient to sustain the order. As already observed by me, since the appointment of Receiver is a harsh remedy, it may be that the Food Corporation of India is entitled for the relief, but however the learned Senior Civil Judge, Pithapuram is expected to record reasons in detail in accordance with law so as to satisfy the ingredients under Order 40 Rule 1 of the Code. I do not want to dwell any further except making this observation at this stage. In all fairness, Sri Ravi Kumar, the learned counsel representing the appellant/4th Judgment-debtor had made an offer to make deposit of the amounts if certain reasonable instalments are granted. It is needless to observe that if the appellant is so advised, the appellant in stead of resorting to delaying tactics, may show his bonafides by making necessary deposits by filing appropriate application if necessary before the learned Senior Civil Judge, Pithapuram in this regard within two months.
8. In the light of the above observation made, the impugned order is hereby set aside and the matter is remitted to the learned Senior Civil Judge, Pithapuram, to hear both the parties and pass appropriate orders in the light of the observations made above, within a period of two months from the date of receipt of the order. The Civil Miscellaneous Appeal is allowed to the extent indicated above. In view of the facts and circumstances, this Court makes no order as to costs.