Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 808 (KAR)

Nimbana Gowda v. Appa Saheb

2000-12-05

R.GURURAJAN

body2000
JUDGMENT R. Gururajan, J.—These two appeals are filed by the Defendant-Appellant challenging the order passed in IA Nos. 1 and 3 by the Civil Judge, Senior Division, Haveri, dated 24.10.2000. Parties are referred as per their original ranking before the trial Court. 2. Plaintiff-Respondents, filed a suit against the sixth Respondent in OS No. 22 of 2000 seeking for partition and separate possession of their alleged 17/24 th share in the suit scheduled property consisting of agricultural lands in addition to house property situated in Sy. No. 54/1A+B/2 measuring 4 acres 14 guntas situated in Ijari Lakamapur Village. According to the Plaintiff, the suit-scheduled property is the ancestral property of Mudigowda Andani Gowdar. The Plaintiffs and the Defendant No. 1 are the heirs and successors of Mudigowda in joint possession of the property. Defendant No. 1 was refusing to give their share resulting in the present suit. Plaintiffs filed IA.I seeking for appointment of a receiver in respect of agricultural lands. The present Appellant-Defendant No. 2 after coming to know of the suit filed by the Plaintiffs filed IA.II, got himself impleaded as Defendant No. 2. Defendant No. 2 contended in his objections to the IA that he is the owner of the suit scheduled property in terms of a registered sale deed dated 21.4.1954 executed by the father of the Respondents and the husband of the second Plaintiff. According to him, father of the second Plaintiff conveyed his 1/3rd share in the joint family property in favour of the father of the Appellant-Defendant No. 1. Therefore the Plaintiff has no right, title, or interest over the property. He has also filed objections to the receiver's application. Learned trial Judge heard the matter and framed the following point reading as under: 1. Whether the Plaintiffs prove that he has got prima facie case and as such it is necessary to appoint a Court receiver to lease the suit property bearing R.S. No. 54/A+B2 measuring 4 acres and 44 guntas of Ijarilakmapur, as per IA Nos. I and III and auction the standing crops in public auction and sale proceeds be deposited in Court, for the year 2000-2001 as per both applications? After hearing the parties before him, the trial Judge allowed I. As. I and III. The operative portion of the order of the trial Judge reads as under: IA Nos. I and III and auction the standing crops in public auction and sale proceeds be deposited in Court, for the year 2000-2001 as per both applications? After hearing the parties before him, the trial Judge allowed I. As. I and III. The operative portion of the order of the trial Judge reads as under: IA Nos. I and III filed by the Plaintiffs under Order 40, Rule 1 Code of Civil Procedure to appoint a Court receiver are allowed. One Sri S.S. Hiretanadavar, advocate is appointed as the Court receiver in this case. The Court receiver is hereby directed to lease the land in public auction either in the chavadi or in the village panchayat Ijarilakamapur for the year 2000-2001 as per IA No. I. Further so far this I.A. No. I is concerned, already time has gone, because auction of land for cultivation can only be made in Ugadi festival. Now as per I.A. No. III the crops are ready for harvesting, as per the case of the Plaintiffs and the Court receiver has to auction the standing crops in the land in public auction. Hence, the Court receiver is hereby directed to auction the standing crop in the suit land in Chavadi or village panchayat, Ijarilakamapur and sale proceeds be deposited in the Court. Sale proceeds can be distributed after the disposal of the case, to the parties who are entitled for receiving the amount. Fees for the Court receiver is fixed at Rs. 500/-. The present appeals are filed being aggrieved by the order of the trial Judge. 3. Heard the learned Counsel for the parties. 4. Both the Counsel took me through the pleadings, documents and the arguments placed before the Court below. Learned Counsel for the Appellant questioned the order of the trial Judge by contending that the said order is contrary to the well accepted principles in the matter of appointment of receiver. According to him the learned trial Judge has committed an error in failing to notice the relevant ingredients in terms of Order 41, Rule 1 Code of Civil Procedure. He argued that his client has a valid title to the suit scheduled property in terms of the sale deed of the year 1954. The Plaintiff having no right, title or interest cannot seek for appointment of a receiver. He argued that his client has a valid title to the suit scheduled property in terms of the sale deed of the year 1954. The Plaintiff having no right, title or interest cannot seek for appointment of a receiver. According to him in a suit where the Plaintiffs seek their share on the ground of possession by the Defendant no receiver can be appointed. He relies on the judgment reported T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty and Others, AIR 1955 Mad 430 , Srinivasa Rao vs. Babu Rao AIR 1970 Kar 141 , Lakshmi Narayanan vs. S.S. Pandian AIR 2000 SCW 3065 . 5. Per contra, learned Counsel for the Respondents vehemently argued before me that the trial Court on appreciation of material has come to a right conclusion and the same cannot be lightly brushed aside in an appeal. According to him the conduct of the parties has to be taken note of in the case on hand. His contention is that there cannot be a better case than the present one for appointment of a receiver. He relies on the judgment of the Madras High Court in the case of Chimalakonda Ramasubbaraya Sastri and Others Vs. Ganapathiraju Venkata Appalanarasimharaju and Others, AIR 1940 Mad 217 and ICICI Vs. Karnataka Ball Bearings Corporation Limited, AIR 1999 SCW 3421 , Subheti Vs. N.R. Lodhi, AIR (33) 1946 Nag 354. 6. Admitted facts reveal that in the year 1954 a sale deed came to be executed in favour of the father of the second Defendant. In the year 1962 a wardi came to be given stating therein that Sankanagowda has become the owner of the suit land as per the sale deed as Mudigowda has sold his share in favour of Sankanagowda. Case of the Plaintiffs is that the sale deed has not at all been acted upon. In the year 1970 there was a family arrangement and to evidence this Sankanagowda has given a document 'Lavani Patra' in the name of Channabasayya Karibasayya Nadivinmath dated 1.4.1972 wherein it is clearly stated that the suit land has been given to the share of Plaintiffs and name of mother of the Plaintiffs is also mentioned in the said document. The lands have been subsequently leased at the rate of Rs. 1,600/- to the said Channabasayya. The lands have been subsequently leased at the rate of Rs. 1,600/- to the said Channabasayya. A wardi was given in the year 1980 stating that suit land has been fallen to the share of Plaintiffs. From the year 1979 till today RR extracts of the suit scheduled property stand in the name of Plaintiff No. 1 and Defendant No. 1. Plaintiffs have also filed 38 documents and 12 affidavits in support of their case. They have stated in the affidavit that Defendant No. 1 is not co-operating and he is trying to destroy the land keeping it shallow. Defendant No. 1 filed objections. Defendant No. 2 also disputed the joint possession and he has also filed a suit in OS No. 44 of 2000 to declare that he is the owner of the suit property. After noticing all these facts the learned Judge has ordered appointment of a receiver. To me this appears to be a right conclusion. The argument of the learned Counsel for the Appellant that the Respondents have no title does not impress me, as rightly mentioned by the learned Judge. Except ME No. 1012 and the sale deed of the year 1954 no other documents are placed by the Appellant to destroy the voluminous document placed by the other side. 7. Mr. Iyengar, learned Senior Counsel, for the Respondent has invited my attention to two judgments of the Madras High Court 1940 Mad 217 and 1946 Nagpur 354. In Chimalakonda Ramasubbaraya Sastri and Others Vs. Ganapathiraju Venkata Appalanarasimharaju and Others, AIR 1940 Mad 217 the Division Bench of the Madras High Court has ruled that alienation is not recognized as a mode of severance of a joint family. Again in AIR 1946 Nag 354 (Subheti v. N.R. Lodhi) the Court ruled that by mere fact that a coparcener has alienated his interest in the joint family property he does not cease to be a coparcener and therefore by the mere fact that a coparcener has successfully challenged the alienation made by another coparcener to the extent of his own interest in the property, it does not mean that the two have ceased to be coparceners. Therefore the argument of the learned Counsel for the Appellant that the Plaintiffs have no right at all in the light of the sale deed of the year 1954 cannot be accepted since alienation by itself does not severe the joint family. The case facts further show that subsequently a wardi was given to the Plaintiffs which prove that the sale was not acted upon by parties. At any rate that by itself cannot be a ground for throwing out the litigants namely the Plaintiffs herein. 8. The second most important argument advanced before me is that the learned Judge has failed to consider the well known principles of "Panch Sadachar" as laid down by the Madras High Court in the case of T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty and Others, AIR 1955 Mad 430 followed by this Court in the case of Srinivas Rao Vs. Babu Rao, AIR 1970 Mys 141. These two judgments mention as to what the word 'just and convenient' mean under Order 40, Rule 1 Code of Civil Procedure. The Court has laid down the following five requirements for appointment of a receiver: 1. The appointment of a receiver in a pending a suit is a matter resting in the discretion of the Court. 2. The Court should not appoint a receiver except upon proof by the Plaintiff that prima facie he has a very excellent chance of succeeding in the suit. 3. Not only must the Plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. 4. An order appointing a receiver will not be made where it has the effect of depriving a Defendant of a 'de facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be 'in medio' that is to say, in the enjoyment of no one. And 5. The Court on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. 9. And 5. The Court on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. 9. According to the learned Counsel for the Appellant the above mentioned principles have not been followed by the learned Judge. But according to Mr. Iyengar learned Senior Counsel for the Respondent what was required to be done has been done in accordance with the requirement of law in the case on hand. 10. The trial Judge in the case on hand has considered the very principles in the impugned judgment if the order is read as a whole. The first requirement is that the appointment of a receiver is in the discretion of the Court. In the light of the words 'just and convenient' used in Order 40, Rule 1 the learned Judge has considered the various facts and has exercised his discretion in the matter. The said decision cannot be considered as arbitrary or capricious on the facts of this case. In so far as the second requirement is concerned the learned Judge has noticed that the Plaintiffs have made out a prima facie case. The learned Judge has noticed that the case put forth by the Plaintiffs cannot be said to be a speculative one in the order. In so far as the third requirement is concerned, Plaintiff has filed as many as 38 documents and 12 affidavits to show the need for appointment of a receiver. Though the learned Judge has not discussed each one of them, it does not mean that he has not kept in his mind the danger to the property. He has taken an overall view of the matter in arriving at a right conclusion while appointing a receiver by relying 38 documents, 12 affidavits. In so far as the fourth requirement is concerned the learned Judge has noticed that in terms of the vardi Plaintiffs and Defendants were in possession and documents also support the same. In fact Defendant No. 2 subsequently entered the scene and contested the case. In so far as the fifth requirement, i.e. the conduct of the Plaintiffs is concerned, no motive can be attributed to them. In fact Defendant No. 2 subsequently entered the scene and contested the case. In so far as the fifth requirement, i.e. the conduct of the Plaintiffs is concerned, no motive can be attributed to them. On the other hand, Plaintiffs and the Defendants are related through blood and the Appellant is also the cousin of the Plaintiffs. Therefore nothing can be said about the conduct of the Plaintiffs. It appears to me that though the Judge has not discussed individually in terms of the judgment he has noticed all these facts. In my opinion he has considered the principles laid down by the Madras High Court in the matter of appointment of a receiver. Moreover, when the trial Court has exercised its discretion, unless it is shown before the appellate Court that the said discretion is unwarranted or arbitrary, the appellate Court cannot lightly interfere with the same. In the case on hand no grounds are made out for interfering with the discretionary order passed by the Court below in the appeal. 11. Learned Counsel for the Appellant invites my attention to the judgment of the Supreme Court in the case of ICICI Limited Vs. Karnataka Ball Bearings Corporation Limited, AIR 1999 SCW 2421 wherein the Supreme Court has again noticed the words 'just and convenient' for purposes of appointment of receiver. The Court ruled that a Court may appoint a receiver not as a matter of course but as a matter of prudence having regard to the justice of the situation. 12. In the case on hand the mother and other brothers have come to the Court complaining about their brother causing damage to the property. Their case is that he is employed in APMC, Hubli and he is not co-operating in cultivating the land. Appellant got impleaded and opposed the same. The Court after noticing the facts in the larger interest of the family, has appointed a Court receiver. Moreover the Court has taken precaution in appointing an advocate as Court receiver. It is also ordered that the sale proceeds be deposited in the Court. This would be in the interest of the parties including the Defendant No. 1. The Supreme Court in the case of ICICI Limited Vs. Karnataka Ball Bearings Corporation Limited, AIR 1999 SCW 2421 has ruled as under: 11. It is also ordered that the sale proceeds be deposited in the Court. This would be in the interest of the parties including the Defendant No. 1. The Supreme Court in the case of ICICI Limited Vs. Karnataka Ball Bearings Corporation Limited, AIR 1999 SCW 2421 has ruled as under: 11. In that view of the matter, question of having restriction imposed on the Court's power to direct sale of immovable property prior to the passing of a decree does not and cannot arise. The words, 'Just and convenient' have to be attributed a proper meaning and the intent of the legislature as regards the extent of the empowerment by the Code, is rather categorical in nature. The discretion empowered cannot thus be said to be non-existing, having due regard to the language of Order 40, Rule 1 though, however the Courts shall have to be rather cautious in its approach and use proper circumspection as stated herein before and it is only in the case, where the Court feels it expedient that in the event property is not sold, the initiator of the action would be subject to of Order 40, Rule 1 though, however the Courts shall have to be rather cautious in its approach and use proper circumspection as stated herein before and it is only in the case, where the Court feels it expedient that in the event property is not sold, the initiator of the action would be subject to perpetration of a great fraud; the diminution in value of the assets, wastage and wrongful entrants or trespassers' attempt to make an in-road for their permanent settlement, (the factum of which is not very uncommon in the country presently)-are some such instances which may be taken into consideration. We therefore, hasten to add that the instances noted above are only illustrative in nature and no hard and fast rule can be laid down in regard to the exercise of Court's powers under Order 40, Rule 1, the same being dependent on the facts and circumstances of each case as is available before the Court. A Court may appoint a receiver not as a matter of course but as a matter of prudence having regard to the justice of the situation. 13. The present order cannot in any way be said to be in violation of the pronouncement of the Supreme Court as referred to above. A Court may appoint a receiver not as a matter of course but as a matter of prudence having regard to the justice of the situation. 13. The present order cannot in any way be said to be in violation of the pronouncement of the Supreme Court as referred to above. I do not find any good ground to interfere with the discretionary order of the trial Judge based on facts. Further the order is only for auctioning of the crop of the year 2000-2001. If for any reason the Appellant is aggrieved either on account of the inaction on the part of the Court receiver or on account of any other reason, he is at liberty to approach the trial Court for proper modification or vacation of the order. Appeals are dismissed. The order of the trial Court is confirmed. Parties to bear their respective costs.