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2006 DIGILAW 64 (PAT)

Rabindra Thakur v. Chandeshwar Thakur

2006-01-18

J.N.BHATT

body2006
Judgment 1. In this appeal under Order XLlll rule 1(s) of the Code of Civil Procedure, 1908 (CPC), the appellants have challenged the impugned order dated 5.10.2002 of the trial court, Sub-Judge, 1st East Champaran, Motihari, appointing a receiver in respect of agricultural land, which is the subject matter of a suit for declaration of title and confirmation of possession in T.S. No. 135 of 1999, inter alia, contending that there is no case for appointment of the receiver. 2. It appears that legal heirs and representatives of late Deo Nandan Thakur, the original owner of the land, forming part of the subject matter of the ongoing suit, have sold some part of the properties to the plaintiffs with some of the defendants. Defendant Nos. 78 and 80 are the appellants here who have purchased some of the agricultural properties of late Deonandan Thakur from original defendant no. 2, and have opposed the appointment of the receiver. 3. Learned counsel appearing for the parties are heard, the impugned order is also considered and the relevant provisions of law for appointment of the receiver are also examined. 4. No doubt, it is true that the appointment of the receiver, pending suit, can be made during the pendency of the dispute in a suit in terms of the provisions of Order XL rule 1 CPC provided the Court concerned reaches to the satisfaction that it is just and convenient to appoint a receiver of any property whether before or after the decree. The appointment of a receiver, no doubt, is a stringent procedure and appointment, as such, becomes more stringent in a title suit. However, discretion has been given to the trial court for the appointment of a receiver in given facts situation of a case. It has to be exercised keeping in mind the celebrated principles, as well as, the type and category of the dispute in respect of the properties in question. By host of judicial pronouncements, following aspects have been highlighted to be kept on the mental radar for consideration of the merit of an application for appointment of a receiver under Order XL rule 1 CPC: (i) It is the discretionary power given to the Court; (ii) It has to be exercised judiciously; (iii) It is pre-requisite to ascertain whether there is a, prima facie, case. It means that the person seeking relief for appointment of a receiver has to show a prima facie, case for appointment of the receiver before the adjudication of the controversy. (iv) The plaintiff is also obliged to satisfy the Court that there is a conflicting or divergent interest of the parties to a litigation; and (v) There is emergent peculiar situation requiring appointment of a receiver for the preservation or protection of the properties in question. This can also be adjudged whether the seeker of the relief has reasonable, clear and free from doubt interest in the subject matter of the property. 5. Ordinarily, there shall not be any order for appointment of a receiver when de facto possession is in the enjoyment of the either party. The person, who seeks such an equitable relief, must have a free from blemish conduct. 6. The trial court has passed the order of appointment of receiver in terms of Order XL rule 1 CPC, in the light of peculiar facts situation and the receiver has been appointed, who is incharge of the properties since last three years. It will also be material to notice, at this juncture, that appointed receiver is also a party to the litigation, who is defendant no. 10. He is one of the persons who is not siding either of the parties plaintiiffs. as well as. defendant nos. 78 and 80. Both rival parties, appellants and the respondents, are the purchasers from the heirs of the original owner of the properties. 7. It cannot be said at this juncture that the exercise of the discretionary power of the trial court, upon consideration of the facts of the case, in a pending suit, in relation to the disputed properties, is unjust, unreasonable, or perverse, requiring interference of this Court in exercise of its appellate powers. However, since the very concept of receivership in the jurisprudential philosophy is stringent, depriving the parties from enjoyment, as well as, management thereof, it is desirable to dispose of such a dispute expeditiously. 8. The suit is of the year 1999. Almost for a period of six years, such a dispute is outstanding. However, since the very concept of receivership in the jurisprudential philosophy is stringent, depriving the parties from enjoyment, as well as, management thereof, it is desirable to dispose of such a dispute expeditiously. 8. The suit is of the year 1999. Almost for a period of six years, such a dispute is outstanding. It is desired that such an outstanding controversy relating to the immovable properties and the appointment of the receiver since last three years, would call for and warrant expeditious adjudication of the dispute by the trial court, preferably, within a spell of. 4-5 months after the receipt of writ from this Court. Interim order, if any, would not assume any survival value. 9. With these observations, this appeal shall stand dismissed at this stage itself. No costs.