Judgement This is an application under Section 115 of the Code of Civil Procedure and has been made on behalf of the defendants. The facts of the case in brief are as follows :- 2. The plaintiffs brought Title Suit No. 21 of 1971 in the Court of Assistant District Judge, Upper Assam District at Jorhat, for eviction of the defendants and recovery of compensation for use and occupation of the suit property and for appointment of a receiver. There are three plaintiffs. Plaintiff No. 1 is a religious and monastic institution known as Dakshinpat Satra, plaintiff No. 2 is the Satradhikar of the said Satra and Plaintiff No. 3 is a lessee of plaintiffs Nos. 1 and 2 in respect of the suit property. The defendants are a company known as M/s. Kothari Plantations and Industries Ltd. with its registered office at Calcutta, who will hereinafter be called the defendants. The suit property is a Tea Garden. 3. The case of the plaintiffs in brief is that the land described in schedule A of the Plaint with the tea bushes, trees, fences, hedges, roads and ways, waters and other appurtenances including factory building and machineries of manufacturing tea and other buildings thereon belonged to plaintiff No. 1. Plaintiff No. 2 by a registered deed of lease dated 23-9-1946 granted lease of the property in favour of M/s. Kingsley Golaghat Tea Company Limited, which is now known as Kothari Plantations and Industries Ltd. (the present defendants) for 25 years from 1-1-1946 to 31-12-1970. It was stipulated that on expiry of the lease the lessor will be entitled to enter upon, and take possession of the said property. Before the expiry of the lease the defendants approached plaintiff No. 2 for granting a fresh lease of the property and the latter offered to grant lease for a further period of 30 years on payment of Rupees 50,000.00 as salami and Rs. 52,000.00 as annual rent. This offer was open for one month from 15-4-1956. The defendants failed to respond to this offer but by a subsequent letter dated 1-5-1966 made a counter offer requesting plaintiff No. 2 to grant lease of the property for a period of 50 years, at a lesser annual rent. 52,000.00 as annual rent. This offer was open for one month from 15-4-1956. The defendants failed to respond to this offer but by a subsequent letter dated 1-5-1966 made a counter offer requesting plaintiff No. 2 to grant lease of the property for a period of 50 years, at a lesser annual rent. In the meantime, plaintiff No. 2 had granted a lease of the suit property to plaintiff No. 3 on more attractive terms for a period of 30 years commencing on 1-1-1971. The defendants were duly informed about this new lease and were further requested for giving up possession of the property. Defendants were further informed that the proposal for releasing the property in their favour was closed. The plaintiffs then issued a notice to the defendants asking them to vacate the suit property after the expiry of the lease. 4. In reply to the said notice the defendants claimed Occupancy Right over the suit land, and then filed Title Suit No. 19 of 1970, (renumbered as T. S. 39 of 1970) against the plaintiffs for declaration of their occupancy right and also for permanent injunction. They have obtained an order of interim injunction restraining the plaintiffs from interfering in their possession of the suit property. 5. The plaintiffs alleged that the property in suit was in danger of being wasted for want of proper care and maintenance. So they filed the instant suit for restoration of the suit property after evicting the defendants and removing their buildings, machinery and also for appointment of a receiver. 6. The defendants have filed a written statement. Their defence is that the suit property does not belong to the plaintiffs; it belonged to their predecessors in interest from whom they have got it. It is further alleged that the lease dated 20-3-1956 was obtained by threat and coercion. They further allege that the defendants have acquired occupancy right on the land under the Assam Tenancy Act. The defendants deny that the property is being wasted due to mis-management or lack of proper maintenance. 7. It is further alleged that the lease dated 20-3-1956 was obtained by threat and coercion. They further allege that the defendants have acquired occupancy right on the land under the Assam Tenancy Act. The defendants deny that the property is being wasted due to mis-management or lack of proper maintenance. 7. During the pendency of the suit the plaintiffs filed an application dated 31-1-1972 praying for appointment of a receiver in respect of the suit property on the allegation that the plaintiffs were concerned by the growing deterioration of the Tea garden in the hands of the defendants who have no abiding interest in the property for obvious reasons. They have alleged that since 1966 the defendants have been neglecting to carry out necessary seasonal works such as hoeing, cleaning, prunning, manuring etc. which are essential for the cultivation and maintenance of Tea bushes. The defendants filed an objection to the plaintiffs petition for appointment of a receiver. They objected to the appointment of receiver on the grounds : (1) That the application is barred by the principle of res judicata and (2) that in view of the order of injunction granted in their favour in their suit, no receiver can be appointed. 8. After hearing the petition and the objection the learned Assistant District Judge by his order dated 18-3-1972 overruled the objection and proceeded to take evidence on the application to find whether the plaintiffs were entitled to the appointment of a receiver as prayed for. 9. From the aforesaid order of the learned Assistant District Judge the defendants have filed present petition under Section 115 of the Code of Civil Procedure. 10. Mr. B. C. Barua, learned counsel appearing on behalf of the plaintiffs opposite parties, raises a preliminary objection. His objection is that this application is against an interim order made by the Assistant District Judge on a petition filed by the plaintiffs, and the impugned order does not amount to a "case decided" within the meaning of Section 115 of the Code of Civil Procedure and so the application is not maintainable. In effect Mr. Barua submits that the Assistant District Judge will have "decided the case" only when he passes the order either appointing or refusing to appoint a receiver, and then the defendants will have a right of appeal if they are aggrieved by the order. In my opinion, the submission is falacious. In effect Mr. Barua submits that the Assistant District Judge will have "decided the case" only when he passes the order either appointing or refusing to appoint a receiver, and then the defendants will have a right of appeal if they are aggrieved by the order. In my opinion, the submission is falacious. Whether the ultimate order appointing or refusing to appoint a receiver is appealable or not is not decisive of the issue. If the claim of the defendants that the learned Judge has no jurisdiction to appoint a receiver in view of the order of injunction granted in their favour and the bar of the principle of res judicata, is correct, and the Judge holds he has jurisdiction and proceeds to appoint a receiver, he has adjudicated on the rights claimed by the defendants and "decided the case". Secondly if the order is appealable the question of an application under Section 115, Civil P. C. does not arise at all. In my opinion the preliminary objection has no merit. 11. Mr. S. K. Ghose, learned counsel appearing on behalf of the petitioners, submits two points before me : (1) The plaintiffs previous application for appointment of a receiver having been rejected, the Assistant District Judge has no jurisdiction to proceed to adjudicate on the question of appointment of a receiver afresh; the application is barred by the principle of res judicata; and (2) as there has already been an order of injunction against the defendants in respect of the same property the appointment of a receiver will go directly against that order of injunction. So the learned Assistant District Judge has no jurisdiction to appoint a receiver. In my opinion, it cannot be laid down as a rule of law that when an injunction has been granted against the defendant in a suit, in respect of certain property, no receiver can be appointed in respect of the same property in a different suit by the defendant against the plaintiff. In the instant matter, if the allegations of the plaintiffs are true, it is possible that the property in question may be wasted or damaged by the defendants if they are unscrupulous and find themselves on the verge of eviction. The appointment of a receiver will depend on the proof of the allegations of the plaintiff. Mr. Ghose has relied on a case reported in AIR 1972 Mys 20. The appointment of a receiver will depend on the proof of the allegations of the plaintiff. Mr. Ghose has relied on a case reported in AIR 1972 Mys 20. In my view that decision is correct only in the facts of that case, and does not lay down any general rule of law. Order 40, Rule 1 (a), Civil P. C. provides, "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 decree". The defendants In T. S. No. 39 of 1970 have got an order of injunction restraining the plaintiff, their servants, agents disciples from disturbing them in their peaceful possession. The Judge will make the appointment of a receiver only when it appears to him to be just and convenient, after going into evidence. The appointment, if made will authorise the plaintiffs to interfere in the possession of the defendants, but appoint a neutral person, he will be answerable to the Court to be in the custody of the property, and look after the proper maintenance thereof. The benefit will go to the party who ultimately wins the suit. The submission of the learned counsel has no substance. 12. The next submission of learned counsel is that the present application for appointment of a receiver is barred by the principle of res judicata. He submits that in view of the rejection of the plaintiffs earlier application for appointment of a receiver, the second application for the same purpose and on similar allegations is barred. Mr. Ghose fairly concedes that Section 11 of the Code of Civil Procedure does not in terms apply to the present case but he contends that the principle applies. For this purpose he relies on a decision reported in AIR 1960 SC 941 in which the Supreme Court has held : "Even where Section 11 of the Code of Civil Procedure does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation". In my opinion, the principle is not applicable to the present case. Where new facts are alleged to have arisen in new circumstances, plaintiffs in a fit case can file a fresh application for the appointment of a receiver. AIR 1964 SC 993 ). In my opinion, the principle is not applicable to the present case. Where new facts are alleged to have arisen in new circumstances, plaintiffs in a fit case can file a fresh application for the appointment of a receiver. AIR 1964 SC 993 ). In the instant case, the learned Assistant District Judge finds that paragraphs 16, 18, 20, 22, 26, 30 and 31 of the application for appointment of a receiver disclose some new facts and circumstances, and if they are established, there may be a case for the appointment of a receiver and therefore he held that the applicant should be given an opportunity to establish these new facts and circumstances by adducing evidence and in that view he proceeded to take evidence on the matter. It cannot therefore be said that the plaintiffs second application for appointment of a receiver is barred by the principle of res judicata. 13. The property in question is said to be worth Rs. 60 lakhs. It will be for the learned Assistant District Judge to find whether the facts if proved, justify the appointment of a receiver. It cannot be said that he has no jurisdiction to do so. 14. In the result, this application fails and is rejected. The rule is discharged. Hearing fee Rs. 50.00. Order accordingly.