Andhra HC (Pre-Telangana)
Jambula Ravinder Reddy vs Jambula Raghunandan Reddy And Ors. on 11 March, 2005
Equivalent citations: 2005(4)ALT13
ORDER P.S. Narayana, J.
1. Heard Sri Ramanand representing Sri Ravi Prasad, the counsel for the petitioner-respondent No. 4 and Sri Pulla Reddy, Sri Vasudeva Reddy, and Sri Prabhakar Reddy appearing for the respondents in the application.
2. The petitioner-respondent No. 4 moved the present application praying for appointment of Receiver or Advocate Commissioner to take possession of the plaint schedule property for the purpose of management and to deposit proceeds to the credit of O.S. No. 442 of 1987 on the file of Principal Subordinate Judge, Ranga Reddy District and pass such other suitable orders.
3. The learned counsel representing the petitioner would submit that even as per the preliminary decree, the petitioner-respondent No. 4 is entitled to half share in 1/3rd share of the 1st respondent and thus the petitioner is entitled to 1/6th share in the plaint schedule property. The learned counsel also would submit that despite direction not to alienate, certain alienations had been made and that would amount to wasting the property and hence, in the light of the same, the ingredients of Order 40 Rule 1 CPC are attracted.
4. On the contrary, Sri Pulla Reddy, learned counsel representing the appellants would maintain that due to old age the appellants are unable to maintain themselves and at any rate this is not a case where any mismanagement or wastage had been complained. The learned counsel in all fairness would submit that at a particular time, certain alienations had been made and contempt case No. 595 of 2004 had been filed but however, this Court observed that there is no intentional or deliberate violation of the interim order. The learned counsel also would submit that no further alienations are being made and in the light of the same, it is not a fit matter where a Receiver to be appointed.
5. The other counsel also made certain submissions in this regard.
6. The petitioner moved the present application praying for the relief of appointment of Receiver or Advocate Commissioner to take possession of the plaint schedule property. It is no doubt true that petitioner-respondent No. 4 was declared to be entitled to half share in 1/3rd share of the 1st respondent i.e., 1/6th in the plaint schedule property as per the preliminary decree. Aggrieved by the same, respondents 1 to 3 herein, the appellants had preferred the present appeal A.S. No. 462 of 1997 and had obtained stay of operation of the decree in CMP No. 5926 of 1997 dated 29-4-1997. It is stated that the 1st respondent taking advantage of obtaining stay started alienating the properties and hence, the petitioner filed CMP No. 25636 of 2003 praying for direction to respondents not to alienate or change the nature of the plaint schedule property and the same was allowed by orders dated 10-11-2003. But despite the orders of this Court, alienations were made and hence a contempt case No. 595 of 2004 was filed but however, this Court had taken a lenient view taking into consideration the age of the 1st respondent being 81 years. In the said circumstances, it is prayed that it is a fit case where a Receiver is to be appointed or at least an Advocate Commissioner to be appointed to take possession of the plaint schedule property for the purpose of management.
7. A counter-affidavit is filed denying certain allegations and no doubt admitting certain allegations. Specific stand was taken that due to family and personal necessity and in view of the old age to meet the medical bills, the 1st respondent made certain alienations and a contempt case No. 595 of 2004 was filed and in the said contempt case, it was specifically observed that there was no deliberate violation. Further specific stand was taken that in the light of the finding given in the contempt case aforesaid, there is no possibility of making any further alienations though the 1st respondent is badly in need of money. No doubt certain other allegations touching the merits of the matter whether the petitioner is adopted son or not also had been narrated in detail. It is a suit for partition and no doubt it was pointed that there is no specific prayer relating to enquiry into the mesne profits. This aspect need not be gone into at this stage.
8. Order 40 Rule 1 CPC reads as hereunder:
1. Appointment of Receivers-(1) Where it appears to the Court to be just and convenient, the Court may by order:-
(a) appoint 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 of 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.
9. In the light of the allegations made in the affidavit filed in support of the application and stand taken in the counter-affidavit, it cannot be said that any of the ingredients specified under Order 40 Rule 1 CPC had been satisfied. Apart from this aspect of the matter at no point of time any attempt was made to get a Receiver appointed during the pendency of the suit and after a long lapse of time after filing of the appeal, this application had been thought of.
10. In S.B. Industries v. United Bank of India, (D.B.) while dealing with relevant considerations for appointment of receiver, it was held:
"Order 40, Rule 1 of the C.P.C. lays down that where it appears to the court to be just and convenient the court may by order appoint a receiver of any property whether before or after a decree. In order to justify the appointment of receiver, the plaintiff must establish a reasonable possibility that the plaintiff will ultimately succeed in obtaining the relief claimed in the suit. The requirement thus is that he must establish a good prima facie case. It may further be remembered that the appointment of a receiver is, as a general rule, discretionary, and not a matter of right. A court will make an appointment of a receiver with great caution and circumspection. In a case where the remedy of the appointment of a receiver seems necessary to prevent fraud, to protect and preserve the property against an imminent danger of loss or diminution in value, destruction, squandering, wastage or removal from jurisdiction, the court may appoint a receiver. It may further be stated in this connection that a court in exercise of its discretion to appoint or refuse a receiver must take into account all the circumstances and facts of the case, the presence of conditions and grounds justifying the relief, ends of justice, the rights of all the parties interested in the subject-matter and the adequacy of other remedies.
Learned counsel for the defendants, however, contended that since the trial court had already issued an injunction restraining the defendants from disposing of the properties, therefore, there was no occasion for the court below to order the appointment of a receiver. There is no such law that the issue of a temporary injunction affects the rights of the plaintiff to get the receiver appointed. A receiver can be appointed even after the issue of injunction if exigencies of the situation require it and the court feels that it would be just and convenient to make an order in that respect. Accordingly we are not impressed by the argument of the learned counsel for the defendants that simply because an injunction had been earlier issued, the court below had no jurisdiction to order the appointment of receiver. The allegations made in the affidavit of the plaintiff would show that the defendants were trying to remove and dispose of the properties despite the injunction hence the order of the Court below cannot be said to be wrong on this ground."
11. Likewise, in Kamal Choudhary v. Rajendra Choudhury, it was held at para 10 as hereunder:
"In my view, in some of the judgments instead of strong prima facie case a good prima facie case has been used. Therefore, too much emphasis cannot be laid on the word 'strong'. Reference may be made to Bokaro and Ramgur Ltd. v. State of Bihar on which reliance was placed by Mr. Roy. It may be noticed that the case had come up before G.N. Prasad, J., on the difference in opinion between U.N. Sinha and S.N.P. Singh, JJ. Their Lordships while dealing with the provision under Order 40 Rule 1 of the Code, observed that in the matter of appointment of receiver of the property in dispute before it, the court had a wide discretion. But it would not appoint a receiver unless from the materials brought to its notice it was satisfied that it was just and convenient to do so. Different considerations would arise in different cases, but in a case of disputed title, where the plaintiff sought recovery of possession, the Court would appoint a receiver if it was satisfied on two matters: (1) that the title which the plaintiff had set up was prima facie good; and (2) that the property was in danger of being wasted or dissipated or being so dealt with as to get irretrievably out of the reach of the plaintiff who was prima facie entitled to its possession. In the particular case, as noted, the trial court has found that the plaintiffs had got a good prima facie case. Therefore, on that ground, the impugned order cannot be said to be bad."
12. In Rama Sanker Misra v. State of Orissa, AIR 1965 Orissa 20 it was held that appointment of Receiver-party in possession of disputed property under a legal claim should not be ousted from possession by order of appointment of receiver unless it was proved on record that he had been mismanaging or damaging the property to render it unfit.
13. At any stretch of imagination, in the light of the allegations made in the affidavit filed in support of the application, it cannot be said that the ingredients of Order 40 Rule 1 CPC in any way had been satisfied. Hence, this Court is of the considered opinion that the ASMP No. 15384 of 2004 being devoid of merit the same shall stand dismissed.
14. However, at this stage, a request is made that the main appeal itself may be taken for final hearing and the same may be disposed of at an early date.
In view of the same, let the office list the main appeal for final hearing after four weeks.