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2003 DIGILAW 29 (ORI)

Sanatan Barik v. Purna Chandra Barik

2003-01-14

P.K.TRIPATHY

body2003
ORDER 14.1. 2003 — Mr. Kar, learned counsel for the petitioners is present. None appears for the opposite party. Mr. Kar states that he could not find the address of the counsel for the oppo¬site party, therefore, he could not intimate him. Since the name of the counsel is indicated in the cause list and he has not ap¬peared either yesterday or today, therefore this revision will not be adjourned any further. 2. Heard learned counsel for the petitioners and this civil revision stands disposed of at the stage of admission in the following manner. 3. Defendants in the Court below are the petitioners against the order of appointment of receiver with respect to the suit property as per order passed by Civil Judge (Senior Divi¬sion), Balasore in Title Suit No. 443 of 1998. Opposite party is the plaintiff in that suit. As noted in the impugned judgments and also it reveals from the copy of the plaint, which is pro¬duced for perusal, that the suit has been filed for a declaration that no title with respect to the suit land passed on the father of the defendants or to the defendants on the basis of the four registered deeds, which were executed by the father of the plain¬tiff. According to the plaintiff those four documents were exe¬cuted by the father of the plaintiff with a view to put that landed property as security for the loan taken from the defend¬ant’s father and the vender had no intention to alienate that property by executing and registering the sale deeds. It is further alleged in that plaint that when the father of the de¬fendants have obtained four registered sale deeds in a clandes¬tine manner, therefore, those sale deeds should be set aside, title and possession of the plaintiff over the suit land be de¬clared or in the alternative, possession be recovered in his favour. 4. Plaintiff/opposite party also filed Misc. Case No. 288 of 1999 under Order 40, Rule 1, C.P.C. On 3.8.2000 learned Civil Judge (Senior Division), Balasore disposed of that application in the following manner : “Plaintiff Purna Chandra Barik in his petitioner Dt. 20.7.99 U/o 40 Rule 1, C.P.C. says that both plaintiff and de¬fendants are co-sharers of the suit land. But, defendants in order to put loss to the plaintiff are creating disturbance in the possession of plaintiff over the suit land. 20.7.99 U/o 40 Rule 1, C.P.C. says that both plaintiff and de¬fendants are co-sharers of the suit land. But, defendants in order to put loss to the plaintiff are creating disturbance in the possession of plaintiff over the suit land. So, for preservation of property and just decision of the case a receiver for the suit land may be appointed till disposal of the suit. After perusal of the same and hearing both sides I am of opinion that for just decision of the suit and preservation of the suit properties a receiver is required to be appointed. So, petition under Order 40, Rule 1 is allowed. Call on 19.8.2000 for appointment of receiver. Both parties to come ready to take part in the auction of receivership. Misc. case is accordingly dis¬posed of.” 5. Petitioners challenged the above quoted order before the District Judge, Balasore in Miscellaneous Appeal No. 76 of 2000, and learned District Judge, as per the impugned judgment dated 2nd January, 2001, has dismissed the appeal on the ground that: “9. On consideration of the facts and circumstances of the case and the contentions raised by both the sides, I find that appointment of receiver for preservation of the suit land is necessary, because it is not known when the suit will be disposed of. Thus, I find no cogent reason to interfere with the impugned order.” (Underlined to put emphasis) 6. Learned counsel for the petitioners rightly argues that the Courts below have failed to properly understand the facts involved in the suit and to construe the meaning of the term “just and convenient” while considering the case as to whether a receiver should be appointed. In that respect a detailed discus¬sion or documentation is not necessary in view of the settled principle of law in the case of Sarada Dei v. Khirod Kumar Sahu and others, 55 (1983) C.L.T. 461. In that case this Court has followed the ratio in the case of T. Krishnaswamy Chetty. v. C. Thangavelu Chetty and others, A.I.R 1955 Madras 430. Even in another decision reported in the same journal at page 571 (Mu¬niammal v. P. M. Ranganatha Nayagar and another, Honourable Ramaswami,J. has reiterated the same principles as the guideline while considering a matter relating to appointment of receiver. 6. v. C. Thangavelu Chetty and others, A.I.R 1955 Madras 430. Even in another decision reported in the same journal at page 571 (Mu¬niammal v. P. M. Ranganatha Nayagar and another, Honourable Ramaswami,J. has reiterated the same principles as the guideline while considering a matter relating to appointment of receiver. 6. It appears from the order of learned Civil Judge (Senior Division) that he misconstrued the dispute to be a suit for partition and even then he did not apply the law in proper manner while considering the question of appointment of a receiv¬er. Plaintiff claimed for appointment of receiver on the ground of wastage and mismanagement of the suit property in the hands of the defendants. Admittedly, the Courts below have not recorded their satisfaction regarding proof of the factum of wastage and mismanagement of the property by the defendants. The above noted ground on the basis of which order was passed by the Civil Judge for appointment of receiver and the reason for which the appel¬late Court declined to interfere with the order of appointment of receiver are alien to the ground advanced by the plaintiff and also to the requirement of law. Sub-rule (1) of Rule 1 in Order 40 provides that “Where it appears to the Court to be just and convenient, the Court may by order - (a) appoint a receiver of any property.......” The term ‘just and convenient’ does not mean the arbitrary whim or pleasure of the Court to pass an order for appointment on any ground which stands against the equity. Appointment of re¬ceiver deprives a person from enjoyment of that property during the tenure of receivership. Therefore, it has been regarded as a ‘harsh remedy’. 'Just and convenient' connotes what is right and just according to the judicial notion. Order for appointment of receiver should be for the protection of property or prevention of injury according to legal norms. 7. The impugned order for appointment of receiver undoubt¬edly lacks the factual backing and legal support. Hence the impugned order for appointment of receiver stands rejected and accordingly the Civil Revision is allowed. Revision allowed.