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2010 DIGILAW 1118 (PAT)

Braj Kumar Singh v. Diwakar Kumar Singh

2010-05-04

MUNGESHWAR SAHOO

body2010
JUDGEMENT 1. Heard the learned counsel sri Raghunath Kumar appearing for the appellant and the learned counsel for the respondents also under Order 41 rule 11 C.P.C. and this appeal is being disposed of at the admission stage itself. 2. The appellant has filed this Misc. Appeal against the order dated 14.8.2008 passed by the learned court below in Partition Suit No. 67/07 whereby the application filed by the appellant under Order 40 rule 1 C.P.C. for appointment of receiver has been rejected. 3. The plaintiff respondent no. 1, Dewakar Singh @ Diwakar Kumar Singh filed the aforesaid suit bearing Partition Suit No. 67/07 claiming partition of his share to the extent of 1/5th in the suit property on the ground that the suit properties are joint and he is not getting his actual share. 4. The appellant who was defendant no. 1 in the court below appeared and filed contesting written statement. The main defence was that Schedule-I property mentioned in the written "statement is the self- acquired property of defendant no. 2. The Schedule-I(K) mentioned in written statement was sold out for legal necessity and the purchasers are in possession. The Schedule-I I property has been acquired by defendant no. 3 through registered gift executed by his great grandmother. The appellant only admitted the fact that remaining property are joint family property. 5. Thereafter the appellant filed an application under Order 40 rule 1 C.P.C. for appointment of receiver alleging mainly that the plaintiff and the defendant no. 4 are in collusion with each other and their attitude is to harass the defendants no. 1 and 2 who are old persons. The defendant no. 3 resides at Delhi. It is further alleged that the plaintiff and defendant no. 3 are harassing the appellant by. depriving him from usufruct and the benefit of the joint family property and they are trying to sell the mango fruit with other persons. A rejoinder was filed. After hearing the parties. The learned court below by the impugned order rejected the application for appointment of receiver. 6. It appears that the appellant is the father of the plaintiff and the other defendants are daughters and wife of the appellant and, therefore, the suit is amongst the father, sons and the daughters. A rejoinder was filed. After hearing the parties. The learned court below by the impugned order rejected the application for appointment of receiver. 6. It appears that the appellant is the father of the plaintiff and the other defendants are daughters and wife of the appellant and, therefore, the suit is amongst the father, sons and the daughters. From perusal of the impugned order it appears that by the same order the learned court below has restrained the parties from transferring the suit land till the disposal of the suit. It further appears that there are claimants and counter claimants regarding self- acquired property. It further appears that the some properties have been sold by the appellant and it further appears that according to the appellant the purchasers are in possession. 7. From perusal of the application under Order 40 rule 1 C.P.C. appended with this memo of appeal it appears that there is no allegation regarding mismanagement or misappropriation at the hands of the plaintiffs or the other defendants. 8. It is well settled principles of law that the word "just and convenient" do not mean that the court is to appoint a receiver simply because the court thinks it convenient. The court should appoint a receiver for the protection of right or for the prevention of injury according to the legal principles. The power exercised under this order is purely discretionary and the discretion should be exercised in accordance with the principles on which judicial discretion is exercised and, therefore, unless the plaintiff shows a strong and prima facie case the receiver should not be appointed as the appointment of a receiver is one of the harshest remedies which law provides for enforcement of right. On the basis of mere allegation made in the plaint or receiver application about waste of the suit property is no ground for appointment of a receiver. It is also well settled that as a general rule the court will not appoint a receiver in partition suit. Only in such a case special circumstance is proved, i.e., a prima facie case of misappropriation by the Manager of the family. In the present case it appears that the Manager himself, i.e., Karta and father of the family has filed this application. Only in such a case special circumstance is proved, i.e., a prima facie case of misappropriation by the Manager of the family. In the present case it appears that the Manager himself, i.e., Karta and father of the family has filed this application. The allegation has been made that he is not allowed to utilize usufruct of the land personally and it is necessary to manage and protect the joint family property and that the defendants are trying to sell mango fruits to other person. From perusal of the impugned order it appears that the appellant himself sold some of the properties and, therefore, injunction application was filed and the parties have been restrained. 9. It appears that the learned court below considering these aspects of the matter has come to finding that the appellant has failed to make out a case for appointment of receiver. I do not find any illegality in the impugned order and, therefore, there is no reason to interfere with it. 10. In the result, I find no merit in this miscellaneous appeal. Accordingly, this Misc. Appeal is dismissed