Andhra HC (Pre-Telangana)
Damalanka Gangaraju vs Nandipati Vijayalakshmi And Ors. on 18 July, 2002
Equivalent citations: 2003(3)ALD140
JUDGMENT Dubagunta Subrahmanyam, J.
1. This appeal is filed against the Order dated 15.2.2002 in I.A.No.554 of 2001 in O.S.No. 7 of 1996 on the file of Senior Civil Judge, Pithapuram.
2. The first respondent herein filed the suit for partition and obtained a preliminary decree for partition regarding her share. The appellant is her father. He filed an appeal in A.S.No.713 of 2000 on the file of this court against the preliminary decree obtained by the first respondent herein. In that appeal, this court granted stay of passing of final decree alone in the said civil suit. The said order was passed on 7.4.2000. The said order is still in force. During the pendency of the appeal, the first respondent filed a petition requesting the trial court to determine past mesne profits. The said petition is pending in the trial court. The first respondent filed another petition under Order XL Rule 1 C.P.C., requesting the trial court to appoint a Receiver to take possession of plaint 'A' schedule properties and manage the same. The appellant herein opposed the said application. Inter alia he contended that when the appeal over the preliminary decree is pending before the High Court, the trial court cannot entertain the said application under Order XL Rule 1 C.P.C. The trial court in para 8 of its order held that when the first respondent therein is in admitted possession of the property being kartha of the joint family and when there was no waste or damage to the said property, it is not proper to appoint a Receiver to take possession of the petition schedule property. However, it further observed that when the first respondent herein obtained a preliminary decree for partition of her 1/3rd share, she cannot be asked to wait till the disposal or the result of the first appeal and second appeal, etc., and when the first respondent therein is in possession and realising income, he is bound to pay some amount to the petitioner therein. Accordingly the trial court directed the first respondent therein to deposit a sum of Rs.3,500=00 into court towards the profits of the share of the petitioner therein for the year 2001-2002 on or before 26.2.2002 and failing which a Receiver will be appointed to take possession of the schedule land. Aggrieved by that order of the trial court, the first respondent therein preferred the present appeal.
3. Regarding the jurisdiction of the trial court to entertain the application for the appointment of the Receiver, the trial court merely stated that previously two similar petitions were filed and similar orders were passed and the present appellant did not object for the same. The circumstance that appellant herein did not oppose the earlier application does not by itself vest the jurisdiction in the trial court to entertain any application if it has no jurisdiction to entertain the said application.
4. In the trial court, reliance was placed by the appellant herein upon a judgment of the Madras High Court in CHIDAMBARAM Vs. PETHAPERUMAL (1). In that case also there was an appeal pending in the High Court against the decree and judgment passed by the trial court. In that appeal also High Court stayed the passing of a final decree. During the pendency of that appeal before the High Court, a petition for the appointment of a Receiver was entertained and allowed by the trial court. The Madras High Court clearly held that when a decree has become final and an appeal is pending, the appellate court has become seised of the whole case and the Subordinate Court had no further control over it. It further held that Order XL Rule 1 empowers the court, where it appears just and convenient, by order to appoint a Receiver of any property, whether before or after the decree. It further held that when an appeal is pending in the High Court, the appellate (1) AIR 1937 Madras 163.
court has become seised of the whole case. The relevant passage at the end of the judgment of the Madras High Court reads as follows:
"The appellate court has become seised of the whole case. The Subordinate Court had then no further control over it. The High Court was the Court which then had the power to appoint a receiver under O. 40, R. 1. The Sub-Judge's order appointing a receiver was therefore beyond his powers, and it must be set aside."
5. No contra decision is brought to the notice of this court by the learned counsel for the respondent No.1. Though the above decision was cited before the trial court, it did not follow the principle of law laid down by the Madras High Court in the above decision. The said decision of the Madras High Court is binding on this court. This proposition of law is undisputed. In view of the principle of law laid down by the Madras High Court in the above decision, it is very clear to my mind that the trial court has no jurisdiction whatsoever to entertain and pass orders in an application filed for the appointment of Receiver. Therefore the impugned order passed by the trial court is liable to be set aside.
6. In the result, the appeal is allowed. The order dated 15.2.2002 in I.A.No.554 of 2001 in O.S.No.7 of 1996 is set aside. The said petition is dismissed with costs. No costs.