Muhamed v. Abdullakutty Alias Bava — 1969 DIGILAW 140 (KER)

ORDER V.R. Krishna Iyer, J. 1. Considerable industry has been displayed by counsel on both sides in unearthing all possible points that could be pressed and decisions that could be cited in support of the rival view points presented before me in the case. 2. I may state the facts briefly to the extent relevant for appreciating the contentions raised in this revision petition. Two brothers, figuring as revision petitioner and respondent, are the parties to this case. O. S. No. 12 of 1965 was brought by the plaintiff, who is the respondent before, me, for a permanent injunction restraining the defendant (revision petitioner) from interfering with the possession of the former. While this suit (O. S. No. 12 of 1965) was pending, I. A. No. 64 of. 1965 was filed by the plaintiff seeking an interim injunction which was granted ex parte and subsequently made absolute. C. M. A. No. 296 of 1965 was filed against this order by the aggrieved defendant, and the learned Subordinate Judge who heard the appeal remanded the case to the Trial Court. Whereupon, a Civil Revision Petition (C. R. P. No. 349 of 1966) was filed by the plaintiff which was eventually dismissed with a direction to dispose of the suit itself expeditiously. When the C. R. P. was pending in the High Court, I. A. No. 34 of 1967 was filed on 4-1-1967 by the plaintiff for the appointment of a receiver. The learned Munsiff dismissed it on 15-2-1967 by a strange order. He said "1 do not think, that in the above circumstances (he was referring to the pendency of the Civil Revision petition in the High Court against an order of injunction) it will be proper for this court to consider the question of appointing a receiver at this stage, even if the pendency of the revision petition will not constitute a bar, because the question regarding the possession of the property is necessarily involved in that, since no receiver could be appointed unless there is a danger of the property being wasted or there is real difficulty in deciding the question as to who is in actual possession of the property. Moreover, all the relevant records have been forwarded to the High Court for reference in the Civil Revision Petition and therefore it appears to me that if the plaintiff thinks that the circumstances warrant the appointment of a receiver, the proper course to be adopted is to make an application before the High Court for that relief. I am therefore of opinion that no receiver could be appointed as prayed for." In a suit pending before a Court an injunction application was disposed of by it, and eventually the interlocutory proceeding was the subject matter of a revision petition. I do not know on what basis the learned Munsiff says that therefore an application for the appointment of a receiver should be made in the High Court. The less said about the legal knowledge behind this order the better. 3. Anyway, an appeal was filed (C. M. A. No. 45 of 1967) before the District Court which was transferred to the Sub Court and renumbered as C.M.A.No.89 of 1962. The Munsiff dismissed the receiver application on 15-2-1967. The C. M. A. was filed on 1-6-1967. When the C. M. A. was pending, the suit itself was decreed in favour of the plaintiff on 30-3-1968. An appeal was filed promptly by the brother, who lost the battle, as A. S. No. 185 of 1968, and he got a suspension of the operation of the permanent injunction decreed by the Trial Court. This order was passed on 28-5-1968, and the C. M. A. itself was allowed much later on 24-3-69. The learned Subordinate Judge directed the appointment of a receiver as he felt it was just and convenient to do so. It is this order that is the subject matter of attack before me by the defendant who is the revision petitioner. 4. Counsel for the revision petitioner contends that at the time the C. M. A was disposed of (24-3-1968) there was no suit pending since the Trial Court had already decreed it. Moreover, an appeal had already been filed against the decree and stay obtained. So much so, the Trial Court could not have appointed a receiver on 24-3-1969 when the appellate Court appointed one and since the appellate jurisdiction is being exercised only to the extent the original power existed, the Subordinate Judge himself had no power to appoint the receiver. The respondent counters this contentions in many ways. So much so, the Trial Court could not have appointed a receiver on 24-3-1969 when the appellate Court appointed one and since the appellate jurisdiction is being exercised only to the extent the original power existed, the Subordinate Judge himself had no power to appoint the receiver. The respondent counters this contentions in many ways. According to him, a receiver could be appointed not merely during the pendency of a suit but even after its disposal. It must be mentioned here that, according to the counsel for the revision petitioner, no receiver could be appointed by the Court of first instance if the suit is not pending before it or at least it is not in seisin of the execution of the decree as against the property for which a receiver is appointed. Counsel for the respondent also contends that in this case the appeal was filed when the suit was pending and this right of appeal could not be defeated by the circumstance that the suit had since been disposed of, since a statutory right could not be taken away except by express provision or by necessary implication, neither of which exists in this case according to him. 5. The following points may be formulated as calling for decision at this stage. I may mention right now that on the merits of the order no arguments have been advanced and so the jurisdiction question alone need engage me, (1) Can a Court of first instance appoint a receiver when it is not in seisin of the property over which the receiver is sought to be appointed either on the basis of the pendency of the suit itself or of the pendency of the execution of the decree relating to the property? (2) Can a right of appeal conferred by O.43 R.1 (s) be taken away on account of the subsequent disposal of the suit? (3) What is the scope of the appellate power in relation to disposal of an interlocutory matter ? (4) Can there be a simultaneous jurisdiction in the Court of first instance and the appellate Court which is seized of the subject matter of the suit on account of an appeal against the decree itself being before it ? I shall tackle these questions more or less together, since the arguments overlap. 6. (4) Can there be a simultaneous jurisdiction in the Court of first instance and the appellate Court which is seized of the subject matter of the suit on account of an appeal against the decree itself being before it ? I shall tackle these questions more or less together, since the arguments overlap. 6. Order 40 R.1 C. P. C. confers power on the Court to appoint a receiver of any property "whether before or after decree". The pendency of a suit is not a sine qua non for the appointment of a receiver as is explained in Ramaswami v. Ramaswami Chettiar ( AIR 1964 Mad. 39 ). In that case the appointment of a receiver by the Court of first instance came up for challenge as having been made without jurisdiction, on two grounds, with one of which alone we are concerned. It was contended in that case that as the suit itself had ended in a decree the receiver order made by the Subordinate Judge was without jurisdiction. Dealing with this argument Veeraswami J., (as then was) observed: "Even on the assumption that the suit had ended, it is difficult to uphold the contention that under O.40 R.1, the Subordinate Judge had no power, except in execution, to appoint a receiver. That rule expressly states that where it appears to the Court to be just and convenient it may by order appoint a receiver of any property' whether before or after decree'. Shanmugam v. Moidin, ILR 8 Mad. 229 which was decided before the insertion in O. XL, R.1 of the words whether before or after decree' held that it was competent for the Court to appoint a receiver even after a decree had been passed, otherwise than in execution. It was pointed out in that case that there was nothing in S.503 of the Code as it then stood which restricted the Court's power to appoint a receiver after a suit had come to an end. It was evidently in view of this decision, to make the matter beyond doubt, the words whether before or alter decree' were inserted ................ It follows that the point of jurisdiction raised on behalf of the appellant should be rejected." Another decision of the same High Court reported in Chidambaram Chettiar v. Peethaperumal Chettiar ( AIR 1937 Mad. It was evidently in view of this decision, to make the matter beyond doubt, the words whether before or alter decree' were inserted ................ It follows that the point of jurisdiction raised on behalf of the appellant should be rejected." Another decision of the same High Court reported in Chidambaram Chettiar v. Peethaperumal Chettiar ( AIR 1937 Mad. 163 ) was brought to my notice wherein Cornish J. expressed himself on this aspect of the matter somewhat differently. "The second point taken for the appellant appears to me to have more substance in it" his Lordship observed and continued "O.40 R.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. 'The Court' is not necessarily the Trial Court. The Court which makes the order for a receiver after decree may be the Court which passed the decree or it may be the appellate Court which has become seised of the matter by reason of an appeal. The court which passed the decree has, for example, the power conferred on it by S.51 of the Code to appoint a receiver for the execution of the decree. But that is because the Court which passed the decree still has seisin of the property in suit. But if execution has been stayed it certainly would not have this power. I think that a Court's power to appoint a receiver is limited to the case where the proceedings are still pending before it. ..............or the proceedings in execution of a final decree must be pending. In either event the Court in which the suit or proceedings are pending will have seisin of the suit or of the property subject to execution; and this will be the basis of the Court's power to appoint a receiver of it............". It will be obvious from these two quotes that while in the later decision Veeraswami J. takes the view that it was competent for the Court to appoint a receiver even after a decree had been passed, otherwise than in execution, Cornish J. in the earlier decision takes the view that either the suit must be pending or the proceedings in execution must be pending, before the Court of first instance can appoint a receiver. S.94 of the Civil Procedure Code empowers a Court to appoint a receiver of any property if it is so prescribed and O.40 R.1 C. P. C. prescribes the condition for the exercise of that power. It does not limit the exercise of that power to cases where either the suit or the execution proceeding is pending. However, the point made by Cornish J. is that the Court must have seisin of the property which, in his Lordship's view, is possible only if the suit is pending or the execution proceeding is before it. On a close consideration of the two decisions I am of the view that a Court can appoint a receiver only within the limits of S.94 read with O.40 R.1 and S.51 C. P. C. We are not concerned with any execution, proceeding and so are thrown back to O.40 R.1 which is worded widely to include stages before and after decree. Nevertheless, a receiver cannot be appointed unless the Court has seisin of the property as the subject matter of a proceeding before it. If without being the subject of execution proceeding, a Court could still have seisin over the property after the decree has been passed, the power under O.40 R.1 C. P. C. can be exercised, although such situations will be very limited. 7. Let us consider whether in this case the Court which appointed a Receiver had seisin over the property in the manner explained by me earlier. Of course, the Trial Court dismissed the receiver application and the appellate Court appointed a receiver in C. M. A. No. 89 of 1968. 7. Let us consider whether in this case the Court which appointed a Receiver had seisin over the property in the manner explained by me earlier. Of course, the Trial Court dismissed the receiver application and the appellate Court appointed a receiver in C. M. A. No. 89 of 1968. In doing so, the appellate Court was really exercising the power of the Court of first instance because as has been pointed out in Lechmeshwar v. Keshwar Lal (AIR 1941 FC 5) "an appeal to the Court of appeal is by way of rehearing, and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the appeal was heard." The theory has been accepted in India that the hearing of an appeal is, under the processual law of this country, in the nature of a rehearing and when it passes an order all that it does is to exercise the power of the judge of first instance at the date on which the appeal is disposed of. Therefore, the question that arises for consideration now is whether the judge of first instance could have passed the order of appointment of a receiver on 24-3-1969. Counsel for the petitioner strenuously urges that he could not, because an appeal had already been filed by that time against the decree and the lower appellate court was seised of the subject matter of the suit and was perhaps the only Court competent to consider the appointment of a receiver. What was more, a stay of operation of the injunction decree had also been passed by appellate court. Therefore, runs the argument, the Trial Court had no longer power to appoint a receiver and for that very reason the appellate power could not be exercised to do what the original judge could not have done. What was more, a stay of operation of the injunction decree had also been passed by appellate court. Therefore, runs the argument, the Trial Court had no longer power to appoint a receiver and for that very reason the appellate power could not be exercised to do what the original judge could not have done. He relied upon Ramachandra Jeetmal v. Jeetmal Ganpat Porwal (AIR 1962 M. P. 380) and emphasised the passage therein of Newaskar J: "where therefore the Court becomes functus officio after the passing of the decree and there is an appeal preferred against that decree it is the appellate Court which ought to be moved for the purpose." Of course, on the facts of the particular case the learned judge held that a receiver could be appointed by the original Court because only a preliminary decree had been passed therein and the seisin over the subject matter of the suit had not therefore been lost by the Trial Court. In AIR 1937 Madras 163 also Cornish J. has put the point thus: "In the present instance an appeal is pending to the High Court against the decree in the plaintiff's suit and the High Court while upholding the appointment of the special receiver appointed in that suit, has stayed the passing of a final decree as regards that in which a preliminary decree only had been made by the first Court. In these circumstances, has the first Court any further jurisdiction to appoint a general receiver of the property in suit ? It seems to me that the question has been put beyond dispute by the Full Bench ruling in 32 Mad. 416. It was there said by Sir John Wallis: Now after an appeal has been filed, the appellate Court is seized of the case and should no doubt be applied to rather than the Court of first instance unless the law expressly enjoins the contrary, as was held in 1.8 Mad. 214; but it is a very different thing to press this principle so far as to say that the act of a party in filing an appeal deprives the Court of first instance of power to dispose of an application which has been properly made to it in the exercise of its jurisdiction. 214; but it is a very different thing to press this principle so far as to say that the act of a party in filing an appeal deprives the Court of first instance of power to dispose of an application which has been properly made to it in the exercise of its jurisdiction. In the Full Bench case an application for review had been presented before an appeal had been preferred, and it was held that the subsequent filing of the appeal did not deprive the Court which gave judgment, from entertaining the application to review its judgment. And in 44 Mad. 731, it was held that upon the express language of O.9 R.13, that the Court which passed an ex parte decree being the only court to which application to set it as side could be made, the Court's power to dispose of such an application was not ousted by the filing of an appeal against it." It is fairly clear from this part of the argument of the learned judge that ordinarily when an appeal has been filed against the decree in the suit it is the appellate Court which must be approached for the appointment of a receiver. At the same time, his Lordship refers to 32 Mad. 416 which, after laying down that the appellate Court may be moved once it is seised of the case, nevertheless adds that "the act of a party in filing an appeal" cannot deprive the Court of first instance "of power to dispose of an application which has been properly made to it in the exercise of its jurisdiction". Indeed, exceptions to the rule that the appellate Court alone has jurisdiction in such matters have been illustrated in the Full Bench case in 32 Mad. 416. For instance, a review application for which there is express provision or no application to set aside an ex parte decree, for which also there is express provision if moved before the Court which passed the decree cannot be stultified or rendered incompetent by the act of a party in filing an appeal against the decree, because there is express statutory provision enabling the Court of first instance to dispose of such matters. Again in Behari Lal v. M. M. Gobardhan Lal (AIR 1948 All. 353 FB) this aspect of the matter was emphasised. Again in Behari Lal v. M. M. Gobardhan Lal (AIR 1948 All. 353 FB) this aspect of the matter was emphasised. Harish Chandra J. held that when the law gives a Court jurisdiction to entertain an application for a review of the judgment, such jurisdiction cannot be taken away or cut down except by the express words or necessary implication. Therefore, the entire discussion boils down to this viz., is there any provision in the Code which, in express terms or by necessary implication deprives the Court of first instance of the jurisdiction to dispose of an application for the appointment of a receiver properly made to it at a time it could exercise its jurisdiction in that behalf. Secondly, if an appeal has been filed against an order under O.43 R.1 (s) can that be rendered incompetent by the filing of an appeal against the decree itself. I am inclined to answer both these questions affirmatively. There is no express provision in the Code which takes away the jurisdiction of the original Court to dispose of an application filed before it at a time it had jurisdiction if the relief sought be one which could be granted effectively, even after the decree has been passed. There are certain interlocutory reliefs, such as for the issue of a commission to examine a witness or to make a local investigation and report, which cannot have any meaningful existence after the disposal of the suit itself. In such cases, the passing of the decree must inevitably extinguish the interlocutory application. An application for appointment of a receiver falls under a different category because the Code expressly states that the appointment of a receiver can be made before or after the decree. The only question is, had the Court seisin over the property? At the time the application was filed it had seisin and at the time the Civil Miscellaneous Appeal was filed the appellate Court had seisin. The subsequent disposal of the suit or the institution of an appeal cannot deprive the Court of this jurisdiction because a receiver continues in management of the property for which he is appointed even after a decree. Indeed, even the Court of first instance may appoint him after the decree, in certain situations. The subsequent disposal of the suit or the institution of an appeal cannot deprive the Court of this jurisdiction because a receiver continues in management of the property for which he is appointed even after a decree. Indeed, even the Court of first instance may appoint him after the decree, in certain situations. Therefore, I hold that the order passed by the Subordinate Judge in C. M. A. No. 89 of 1968 was not without jurisdiction and since that is the only ground on which it has been challenged, it must stand. 8. I must indicate that a receiver if appointed, should properly be under the control and direction of the appellate Court because new the property which is the subject matter of the suit is in the seisin, if I may say so, of the appellate Court, which has seisin of the suit itself in a way. The appellate Court will proceed to appoint a receiver but while empowering him to enter on management will take due note of one or two important circumstances. It is contended that, notwithstanding the decree for injunction passed in favour of the plaintiff (whose operation has been suspended in appeal) the defendant is in possession of the land. Of course, this is a matter on which a receiver can be asked to make a report and in the light of his report the Court may be able to arrive at a conclusion whether the plaintiff or the defendant is at present in his possession. If the defendant is in actual possession it may not be an improper exercise of jurisdiction to give a direction to the receiver to find out the feasibility of allowing him to take the usufructs, on reasonable terms, till disposal of the appeal, subject to close control by the receiver and by the Court, through the receiver. Since I am not possessed of all the facts necessary to decide this question I do not want to issue a direction as it were. All that I need say is that the Subordinate Judges Court will appoint a receiver for the estate and direct the receiver to report as to who is found to be in possession at present. Since I am not possessed of all the facts necessary to decide this question I do not want to issue a direction as it were. All that I need say is that the Subordinate Judges Court will appoint a receiver for the estate and direct the receiver to report as to who is found to be in possession at present. The Court may give consequential directions after ascertaining this fact so that an equitable arrangement may be made during the pendency of the appeal, without prejudice to whoever be found ultimately to be the true owner of the property. Before any such direction is given, both sides will be given an opportunity to present their case thereon. 9. Subject to the above directions and observations I dismiss the Civil Revision petition.