M. N. VENKATACHALIAH, J. ( 1 ) THIS matter has appeared in the list of orders' cases; but with the consent of learned counsel on both sides, it is taken up for final hearing and disposed of by this judgment. ( 2 ) THIS appeal is by the plaintiff in o. S. 656 of 1978 and is directed against the order dated 10-1-79 made on I. A. I rejecting plaintiff's application for appointment of a receiver. ( 3 ) THE factual antecedents are these appellant claiming to be a partner of a firm carrying on business of Hoteliers in Bangalore City under the name and style "new Alankar Cafe" said to have been constituted under a deed of partnership dated 30-6-1967, brought the present suit for dissolution of the partnership and for accounts. Plaintiff estimated the relief as to accountability at Rs. 75,000. The suit was resisted by the defendant respondent on a number of grounds, including that the relationship between the parties was not one of partnership at all; that respondent was the sole proprietor and was and has been in exclusive control and management of the said business and that he had for some reasons,"allowed the plaintiff only to manage the same for certain specified period under certain terms and conditions. " ( 4 ) PLAINTIFF with a view to establishing a prima-facie case in support of the interlocutory prayer for appointment of a receiver made in I. A. I relied inter-alia, on the said deed of partnership dated 30-6-67; a Certificate of registration of the partnership issued on 14-11-1967; the deed of lease obtained from the landlord in the names of both himself and respondent respecting the premises in which the said business was carried on and on a deed dated 26-3-1972 which, amongst other things, provided for the management of the said business by turns by the appellant and respondent. The said agreement dated 25-3-1967 is said to stipulate that appellant be in exclusive management of the business for the period between 25-3-1972 and 25-3-74; that thereafter respondent be in such management from 26-3-1974 to 25-3-76 and so on. The agreement also provides that during the period during which one party was in such management by turns, the other party should be compensated by a payment at the rate of Rs. 25 per day. The agreement also provides that during the period during which one party was in such management by turns, the other party should be compensated by a payment at the rate of Rs. 25 per day. ( 5 ) DEFENDANT, resisted the application pointing out that the suit filed by appellant in O. S. No. 2087/76 on the file of the First Munsiff, Bangalore, in which appellant had sought recovery of the management of the business in enforcement of the terms of the deed dated 25-3-1972 came to be dismissed and that the said dismissal was affirmed by the appellate court. Respondent also urged that respondent himself had filed O. S. 771 76 on the file of the First Munsiff, Bangalore, for possessory relief of injunction seeking to restrain appellant from interfering with his exclusive possession and management of the said hotel and that suit, though dismissed by the court of first instance was later decreed in appeal. It is however to be mentioned that both the suits are now biding decision in second appeals before this court. Respondent urged that appellant had not only not, made out a prima facie case, but also that appellant had not made out any grounds under rule 1 of Or. 40 CPC justifying the appointment of a reciver, which according to respondent, would have the effect of virtually dispossessing him. ( 6 ) THE learned civil judge dismissed i. A. I, principally on the ground that the relationship sought to be established by plaintiff was not akin to a partnership and that having regard to the previous litigations between the parties, it was not a fit case calling for or justifying the appointment of a receiver. The learned civil Judge seems to have thought that there having been no allegations of waste and damage, the appointment of receiver could not be sought in such proceedings. It is the correctness of the view taken by the learned Civil judge that is challenged in this appeal. ( 7 ) HAVING regard to the circumstance that the matter arises at an interlocutory stage, it is necessary to avoid any pronouncement, bearing on the merits of the case and on the nature of relationship between the parties engendered by the documents or by the course of conduct between the parties. However for purposes of this intetrlocutory application it may not be impermissible to take note of three circumstances. However for purposes of this intetrlocutory application it may not be impermissible to take note of three circumstances. The first is that the execution of the documents relied upon by the appellant is not seriously disputed; though however there seem to be some allegations in pleadings that the documents stand vitiated. No particulars of the alleged vitiatied circumstances having been furnished, it is not impermissible at this stage to proceed on the basis that these documents are not seriously disputed the second circumstance is that averments in the plaint that the premises in which the hotel business was and is being actually carried on now is the subject-matter of a joint lease in favour of both the appellant and respondent is not also disputed, at any rate, at this stage. Of course, respondent has his own explanation as to how it came about. The third circumstance that requires to be adverted to is that, undisputedly, appellant was in management of the business for some time and respondent's case as urged before the court below is that it was in pursuance of a joint venture between the parties. Respondent admitted that the said acts of management on the part of the appellant were pursuant to certain terms and conditions agreed to between the parties. But respondent has not set out what those terms and conditions actually were. All these matters are, of course, matters which are required to be pronounced upon by the trial court on an appreciation of the evidence to be let in. It is however to be observed that the trial court has not recorded any finding - even if it be only for the purpose of disposal of i. A. I.- that the documents relied on by the appellant-plaintiff do not spell out, prima facie, a case of partnership, he does not find the other way either. It is however to be observed that the trial court has not recorded any finding - even if it be only for the purpose of disposal of i. A. I.- that the documents relied on by the appellant-plaintiff do not spell out, prima facie, a case of partnership, he does not find the other way either. What seems to have weighed with the learned trial judge appears to be first, that the question whether the appellant was entitled to be re-inducted into possession and management pursuant to the terms of the deed dated 25-3-1972 had been negatived by the trial court as well as the first appellate court; secondly, that respondent's suit for injunction had come to be decreed, and that, thirdly, no acts of waste or damage, which alone, according to the trial court, could justify the appointment of a receiver were either pleaded and prima facie established. ( 8 ) WHEN an application of this kind is made in an action for accounts of dissolved firm on contested facts, decision whether or not to appoint a receiver would necessarily have to be taken at a time when the existence of the alleged right or its violation or both are uncertain and continue to remain uncertain until the final judgment. It is to mitigate the risk to plaintiff during the period before that uncertainty could be resolved that the question of protecting his interest by way of interlocutory orders arises. The first endeavour of the court in this exercise would be to find out whether plaintiff has made out a prima facie case. . That concept of a prima facie case could mean no more than that the court be satisfied that the claim is not frivolous or vexatious, and that there is a serious question to be investigated. Indeed, in American cynamid v. Ethicon Ltd. , 1976 (1) ILR Kar. 426. Lord Diplock, speaking for the House of Lords, has had this to say of what a prima facie case in this context means:"15, Your Lordships should in my view take this opportunity of declaring that there is no such rule. Indeed, in American cynamid v. Ethicon Ltd. , 1976 (1) ILR Kar. 426. Lord Diplock, speaking for the House of Lords, has had this to say of what a prima facie case in this context means:"15, Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as "a probability," "a prima facie case" or "a strong prima facie case" in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. 16. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed arguments and considerations. These are matters to be dealt with at the trial. . . . . . . . . " ( 9 ) IN the present case, it cannot be said that plaintiff's case is either frivolous or vexatious and that there is no serious question to be investigated in the proceedings. Such is not the finding of the trial court either. In these circumstances, the court ought to proceed with a view to preserving in status quo the right of the plaintiff and to ensure that no irreversible or uncompensatable injury is occasioned to him, should he ultimately turn out to be right at the trial. The question in the present case is whether this protection should take the form of an order appointing a receiver. In Kerr "on the Law and Practice as to Receivers" (1977) 15th Edn. , adverting to the object of appointing a receiver in an action between the partners, it is observed:"a receiver can only be properly appointed for the purpose of getting in and holding or securing funds or other property, which the court at the trial, or in the course of the action, will have the means of distributing amongst, or making over to, the persons or person entitled thereto. The object sought by such appointment is therefore the safeguarding of property for the benefit of those entitled to it. There are two main classes of cases in which the appointment is made: (1) to enable persons who possess rights over property to obtain the benefit of those rights and to preserve the property pending realisation, where ordinary legal remedies are defective; and (2) to preserve property from some danger which threatens it. " (Underlining (italics) supplied ). In the context of an action between partners for accounts of a dissolved firm, the concept of a receiver is relevant to the first class of cases envisaged by the learned author though however there is also the possibility of such a case falling under both heads. The learned author proceeds to say:"___cases in which the appointment is made under a statutory provision also fall within this class: so do cases where a receiver is appointed over the assets of a dissolved partnership. Where there is an alternative legal remedy, as in the case of legal mortgages, the court has a discretion, but the appointment is now frequently made without proof of jeopardy. " (Underlining (italics) supplied ). What stems from the distinction that the learned author brings out is that the concept of and need for preservation of the subject-matter in the context of some danger which threatens it and which, generally speaking is the foundation for the grant of an application for appointment of a receiver under rule 1 of Or. 40 CPC is not exhaustive of the law on the matter of appointments of receivers in an action between partners or alleged partners and the "just and convenient" clause in Rule 1 of Or. 40 encompasses the second kind of cases envisaged by the learned author. Again at page 70, the learned author emphasises this idea:"partner excluded from management: There is a case for a receiver, even although there be no misconduct endangering the partnership assets, if one partner excludes another partner from the management of the partnership affairs. This doctrine is acted on where the defendant contends that the plaintiff is not a partner, or that he has no interest in the partnership assets or where the partnership is disputed by the defendant on the ground of illegality-as, for instance, where its object is contrary to public policy. This doctrine is acted on where the defendant contends that the plaintiff is not a partner, or that he has no interest in the partnership assets or where the partnership is disputed by the defendant on the ground of illegality-as, for instance, where its object is contrary to public policy. Inasmuch as the court will not appoint a receiver against a partner unless some special ground for doing so can be shown, it follows that, in the case of a firm consisting of three or four members, there is more difficulty in obtaining a receiver than in a firm consisting of two. For, the appointment of a receiver operating as an injunction against the members, there must be some ground for excluding all who oppose the application. If the object is to exclude some or one only from intermeddling, the appropriate remedy is rather by injunction than by the appointment of a receiver. ""when dissolution has taken place. The readiness of the court to appoint a receiver in partnership cases depends upon whether the partnership has been dissolved at the time when the application is made. If a dissolution has clearly been effected by the service of the writ, or if the partnership has expired by effluxion of time, a receiver will readily be appointed, though the appointment is not a matter of course; it will be enough to show that one of the former partners is delaying the winding up and realisation of the business. ""conversely, if all that is shown is that a partner has retired from the partnership, leaving the remaining partners to carry on the former business, he will not be entited to such an appointment. " (Underlining (italics) supplied ). Again, in Lindley"on Partnership' at page 551, it is observed : object of having a receiver and manager. The object of having a receiver appointed by the court is to place the partneship assets under the protection of the court, and to prevent everybody, except the officer of the court, from in any way intermeddling with them. The object of having a manager is to have the partnership business carred on under the direction of the court; a receiver, unless he is also appointed manager, has no power to carry on business. "right to receiver. The object of having a manager is to have the partnership business carred on under the direction of the court; a receiver, unless he is also appointed manager, has no power to carry on business. "right to receiver. In considering the right to the appointment of a receiver in actions for a dissolution or winding up, it is necessary to distinguish cases in which there is a contest between partner? or la,te partners, from those in which, the contest is between partners or late partners on the one side, and non- partners on the other. " (1) As between partners-Where one partner seeks to have a receiver appointed against his co-partners, the first thing to ascertain is, whether the partnership between them is still subsisting, or has been already dissolved, for if it is still subsisting no receiver will be appointed unless some special grounds for the appointment can be shown, or unless it is plain that an order for a dissolution will be made; whilst if the partnership is already dissolved, the court usually appoints a receiver, almost as a matter of course, and it may do so although all other matters in dispute are referred to arbitration. In the case supposed, the common property has to be applied in paying the partnership debts, and has to be divided amongst the partners; and each partner has as much right as the others to wind up the partnership affairs. Their position is, therefore, essentially different from that of mere co-owners, between whom courts decline to interfere by appointing a receiver, except under special circumstances. " grounds for the appointment of a receiver against a partner-The grounds on which the court is usually asked to appoint a receiver before dissolution are (1) that, by agreement, the partners have divested themselves more or less of their right to wind up the affairs of the concern; (2) that, by miscondue. the right of personal intervention has been forfeited, and the partnership assets are in danger of being lost; or (3) that the plaintiff has been wrongfully excluded from the management of the partnership affairs. the right of personal intervention has been forfeited, and the partnership assets are in danger of being lost; or (3) that the plaintiff has been wrongfully excluded from the management of the partnership affairs. " disputed partnership- where a partnership is alleged on the one side and denied on the other, and a motion is made for a receiver, the court is not debarred from appointing a receiver if a strong case for doing so is otherwise made out, but in such a case the court will, still be reluctant to appoint a receiver if either the appointment would inflict irreparable injury upon the defendant (who might succeed at the trial) or adequate protection can be otherwise afforded to the plaintiff. In the case of a professional practice, such as that of an architect, the likelihood of irreparable damage will readily be assumed from the adverse effect which the news that a receiver of the practice has been appointed would probably have on the practice. The same applies, though perhaps to a lesser extent, depending upon the circumstances, in the case of ordinary business. " (Underlining (italics) supplied ). It is in the light of these settled principles that the prayer for IA. I made by plaintiff should be considered. ( 10 ) THE trial court, in my opinion, was not right in thinking that appellant in the present case was not entitled to any protection. The trial court did not record any finding that the action was either vexatious or frivolous and that no serious question was required to be gone into at the trial. I think some measure of protection of the interests of appellant has to be built-in so that no irreversible injury results if appellant ultimately succeeds in the action. But the question is as to the form, nature and extent this protection has to assume. Admittedly, from March 1975 onwards respondent has been in exclusive possession and management of the business. To dislodge him from possession and appoint a receiver instead, may occasion him injustice should he ultimately turn out to be right at the trial. Having regard to the nature of the business which is that of a catering establishment, the appointment of a stranger as receiver would perhaps not be in the interests of either party. To dislodge him from possession and appoint a receiver instead, may occasion him injustice should he ultimately turn out to be right at the trial. Having regard to the nature of the business which is that of a catering establishment, the appointment of a stranger as receiver would perhaps not be in the interests of either party. Having regard to all the circumstances, the order that commends itself as just and equitable is to appoint respondent himself as receiver-cum- manager of the hotel business in question pending the disposal of the suit. Respondent, as such receiver-cum- manager, shall be entitled to manage and carry on the business. Sri S. G. Sundaraswamy, learned counsel for the appellant stated that the business has been very lucrative owing to its location and since the leasehold interest is the common property of both the appellant and respondent, it would be placing premium on the intransigence of respondent in excluding appellant. This, of course, begs the question whether the relationship alleged does amount to partnership in law. Sri S. G. Sundaraswamy stated that in the very nature of this particular business, the ascertainment of the true incomes and profits, for which respondent as receiver-cum-manager would become accountable, would become extremely difficult and it is always eminently possible for the respondent to show a minimum of returns. But it is seen from the agreement dated 25-3-1972 that a partner who is out of management is entitled to receive a sum of Rs. 25 per day. Sri S. G. Sundaraswamy, however, says that this low return was mentioned because both parties were to have the benefit of actual incomes by turns. Sri K. Balachandran, learned counsel for the respondent, filed a memo stating that without prejudice to the defences of respondent, his client would be willing to deposit a sum of rs. 750 per month in the trial court by way of security pending disposal of the suit; and that if pl. ainitiff succeeds ultimately in the proceedings, respondent would, of course, be liable to render accounts of the incomes and profits from the business. Sri S. G. Sundaraswamy submitted that leaving the question of ascertainment of accounts as to income at a later stage would not be conducive to the interests of the appellant at all. ainitiff succeeds ultimately in the proceedings, respondent would, of course, be liable to render accounts of the incomes and profits from the business. Sri S. G. Sundaraswamy submitted that leaving the question of ascertainment of accounts as to income at a later stage would not be conducive to the interests of the appellant at all. In view of this position, the learned counsel after some discussions between them agreed that respondent, as such receiver-cum-manager, should deposit every month a sum of Rs. 1,000 in the trial court towards the income from the business. It was further agreed to between the parties that should appellant, ultimately succeed in the action, his share of the income from the business for the period during which the receivership continues should be limited to and fixed at the said sum of rs. 1,000 and appellant should not be entitled to ask for more for that period. Likewise, should the business run by respondent as receiver-cum-manager ultimately result in a loss or in inadequacy of incomes so as to sustain an allocation of Rs. 1,000 per month to the appellant then the risk should be, that of respondent alone and that appellant, in the event of his final success in the suit, should, in any event, be entitled to a sum of Rs. 1,000 per month as his net share of income, in respect of the period during which respondent functions as such receiver- cum-manager. Learned counsel on both sides were agreed on these terms. ( 11 ) ACCORDINGLY, this appeal is allowed and in reversal of the order under appeal, IA. I filed in the trial court is allowed and, subject as aforesaid, respondent is appointed as receiver-cum-manager. The respondent as such receiver-cum- manager shall deposit, irrespective of actual incomes or profits from the venture, a sum of Rs. 1,000 every month in the trial court. The appellant shall be entitled from time to time to -withdraw these deposits, if he so chooses, on condition that he furnishes a bank guarantee to the satisfaction of the trial court undertaking unconditional repayment of the sums so withdrawn together with interest at 12% per annum thereon should appellant ultimately fail in the suit and become liable to the restitution to respondent of the moneys so withdrawn. Respondent shall also furnish security to the satisfaction of the trial court at the rate of Rs. Respondent shall also furnish security to the satisfaction of the trial court at the rate of Rs. 1,000 per month from the date of suit till 31-3-1979. From 1-4-1979 onwards, appellant shall deposit a sum of Rs. 1,000 per month in terms of this order, commencing from the month of April 1979. The first deposit shall be made on or before 10th day of april 1979 and subsequent deposits on or before 10th of each succeeding month. for and during the pendency of the suit. It is ordered accordingly. Having regard to the circumstances of the case, the trial court shall endeavour to dispose of the suit itself within six months from today. There will be no order as to costs in this appeal. --- *** --- .