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2008 DIGILAW 414 (MAD)

V. K. John v. W. S. Seetharaman

2008-02-05

M.VENUGOPAL, SUDHANSU JYOTI MUKHOPADHAYA

body2008
Judgment :- M. Venugopal, J. O.S.A.No.48 of 2008 is filed by the appellant/ applicant/plaintiff as against the orders passed by the learned Single Judge in O.A.No.949 of 2007 in C.S.No.423 of 1995 dated 111. 2007. 2.The appellant/plaintiff has filed O.A.No.949 of 2007 praying for an appointment of Advocate Receiver to take custody and administer the immovable and movable properties described in the A to D Schedules of the plaint in the suit. 3.The learned Single Judge has dismissed O.A.No.949 of 2007 on 111. 2007 inter alia observing that the appellant/ plaintiff/applicant himself to first identify the stranger and then to file a comprehensive petition etc. and in the meantime, if the parties either the plaintiff or the defendants could identify the persons who are in possession of the suit properties, then to come forward with another application for appointment of Advocate Receiver. 4.According to the learned counsel for the appellant/ plaintiff/applicant, the schedule properties are in the hands of 3rd parties and that the learned Single Judge ought to have taken out of the fact that after the death of the first defendant on 28.07.2007, who has hold the suit schedule properties of the co-owner and on behalf of other co-owners including the appellant, it is just and necessary to appoint a Receiver for protecting and preserving the properties till the parties are adjudicated finally and since the schedule properties are valuable including the valuable movable items which are likely to be stolen the appointment of Receiver is imminent in the interest of justice and pray for allowing the application for appointment of Receiver. 5.We have heard the learned counsel for the appellant and noticed his contentions. 6.The appellant/plaintiff has originally filed the suit in C.S.No.423 of 1995 for partition, for immovable properties and movable properties in A to D Schedules of the plaint praying for 1/3rd share. Later on the plaint has been amended and the appellant/plaintiff prays for 50% share both in immovable and movable properties of A and B, C and D properties mentioned in the plaint. 7.Admittedly, the suit C.S.No.423 of 1995 is in part heard stage. 8.The well settled principle of law is that the appointment of a Receiver is construed as a harsh remedy and can be allowed only in extreme cases and in circumstances where the interests of all are exposed to manifest peril. 7.Admittedly, the suit C.S.No.423 of 1995 is in part heard stage. 8.The well settled principle of law is that the appointment of a Receiver is construed as a harsh remedy and can be allowed only in extreme cases and in circumstances where the interests of all are exposed to manifest peril. In this connection, it is useful to refer to the decision AIR 2004 Orissa 46 Salma Majhi and another V. Bija Majhi and others, wherein it is observed as follows: "Civil P.C. (5 of 1908), O.40, R.1 – Appointment of receiver – Application for – Suit for partition – Trial Court and first appellate Court concurrently declined to grant decree for partition in favour of plaintiff – Further plaintiffs have neither alleged nor substantiated ground of wastage and damage of suit property in hands of defendants – Also nothing stated justifying grounds of urgency – In circumstances appointment of receiver could not be made simply on ground that such appointment would not cause inconvenience to either of parties". 9.Furthermore, in AIR 2003 Orissa 127 Sanatan Barik and Another V. Purna Chandra Barik, wherein it is held as follows: "Civil P.C. (5 of 1908), O.40, R.1 – Appointment of receiver on ground of wastage and mismanagement of suit property in hands of defendants – Courts did not record their satisfaction as to proof of factum of alleged wastage and mismanagement of property – Order of appointment of receiver – Liable to be set aside". 10.At this juncture, it is apt to point out that in AIR 1997 Patna 164 Ram Ekbali Singh and another V. Sheo Pujan Singh and others, whereunder it is laid down as follows: "Civil P.C. (5 of 1908), O.40, R.1 – Appointment of receiver – Validity – Plaintiffs case is that suit properties were purchased by former ancestors by joint family fund long back – Contesting defendants placing facts to show that it was exclusive property purchased from separate earnings – Circumstances highlighted in counter, rejoinder and written statement – Appointment declined". 11.As a matter of fact, the appointment of receiver deprives an individual from enjoyment of that property. No doubt the appointment of receiver is neither a measure of punishment nor it operates to enlarge or existing beneficial right of party, in our considered opinion. 11.As a matter of fact, the appointment of receiver deprives an individual from enjoyment of that property. No doubt the appointment of receiver is neither a measure of punishment nor it operates to enlarge or existing beneficial right of party, in our considered opinion. The burden is on the appellant/plaintiff/applicant to make out a case for the appointment of a receiver and that the said relief must be so imminent without which the right of the party is in danger. In fact, the order of appointment of receiver cannot be made by a Court of law on the basis of arbitrary whim or pleasure or on any ground which stands against equity. Moreover, the interest of parties must be taken into consideration by the Court. Moreover, mere apprehension of a party that property will be dissipated or other irreparable mischief will be caused is not a ground for appointment of receiver. 12.It is not out of place to quote the decision AIR 1955 Madras 430 T.Krishnaswamy Chetty V. C.Thangavelu Chetty and others, wherein the five principles when receiver may be appointed are mentioned as follows: "1.The appointment of a receiver 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". 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". 13.As far as the present case is concerned, the Application No.3614 of 2001 in C.S.No.423 of 1995 was filed by the appellant/plaintiff/applicant praying for amending the plaint claiming 50% of plaint schedule properties and consequently, to include a paragraph in the plaint stating that the second defendant who is entitled to 1/3rd share of the plaint schedule property expired on 24.04.2001 and the first defendant/respondent being the only legal heirs of the second defendant are entitled to 1/3rd share and the said application was allowed by this Court on 28.08.2002. The first defendant claims in the suit that his mother Mrs.Eli John expired on 01.03.1984 and that she executed her last Will and testament dated 10.02.1984 and he was executed as Executor of the Will etc. The second defendant, when she was alive has filed a written statement on 19.07.1995 inter alia contending that she filed a petition before this Court seeking probate of the Will of her mother dated 10.02.1984 and the same was pending to be numbered. The Application No.3613 of 2001 filed by the appellant/plaintiff praying this Court to take on record that the plaintiff and the first defendant as the only legal heirs of second defendant late Leelle Seetharaman was allowed by this Court on 28.08.2002. The respondent in O.S.A.No.48 of 2008 got himself impleaded as 3rd defendant as per order passed by this Court in Application No.1668 of 2006 dated 18.04.2006 and takes a stand in his written statement that the second defendant (who died on 24.04.2001) has left a Will dated 22.01.2001 in favour of him and that the first defendant had fabricated a forged Will dated 01.01.1998 using a forged signature of the late second defendant. 14.It is the case of the appellant/plaintiff that the strangers are in possession of suit properties. In 1998 AIHC 557, 560, 561 (DB) Cal., it is observed that where plaintiff is only a co-sharer, appointment of receiver in respect of entire property is unwarranted. In fact, a receiver should not be appointed merely because the opposite party has no objection. 14.It is the case of the appellant/plaintiff that the strangers are in possession of suit properties. In 1998 AIHC 557, 560, 561 (DB) Cal., it is observed that where plaintiff is only a co-sharer, appointment of receiver in respect of entire property is unwarranted. In fact, a receiver should not be appointed merely because the opposite party has no objection. In short, the appellant/plaintiff/ applicant so far as the present case is concerned, has not satisfied the legal norms for appointment of receiver, in our considered opinion. 15.In view of the foregoing discussions and taking note of the attendant and surrounding circumstances of the case, we are of the considered opinion that the appellant/ plaintiff/applicant has not made out a strong prima facie case as an emergent step for the appointment of receiver and since the main suit in C.S.No.423 of 1995 is pending, the application O.A.No.949 of 2007 has been filed after 12 years of institution of the suit and exercising our discretion and caution judicially, we are not inclined to interfere with the order of the learned Single Judge passed in O.A.No.949 of 2007 in C.S.No.423 of 1995 dated 111. 2007 and resultantly confirm the said order for the reasons assigned by us in this appeal and accordingly, the OSA fails and the same is hereby dismissed in furtherance of substantial cause of justice without costs. Consequently, connected miscellaneous petition is also dismissed.