ORDER 1. This appeal under Order XLIII Rule 1(q) of theCode of Civil Pro­cedure (hereinafter referred to as “Code”) is directedagainst the order dated 23rd March, 2013 passed by the learned Civil Judge, Sr.Division, Court No. 2, West Tripura , Agartala in Civil Misc. case No. 69/2012 arising out of TS48/2012 whereby and whereunder learned Civil Judge,Sr. Div. disposed of the aforesaid Misc. Case 69/2012 appointing receiver andattaching the suit property before judgment relating to schedule ‘A’ to ‘G’properties in the plaint by confirming its earlier order dated 12-3-2012 inrespect of schedule ‘A’ to ‘G’ properties in the plaint. 2.Heard Mr. D. Chakraborty , learned counsel for theappellants, who were the defendants in TS 48/2012 and OP in Civil Misc. 69/2012arising out of the aforesaid suit (hereinafter referred to as“appellant-defendants”) as well as Mr. N. Majumdar ,learned counsel for the sole respondent, who is the plaintiff in the aforesaidsuit and petitioner in the aforesaid Civil Misc. case (hereinafter referred toas “plaintiff-respondent”). 3.Brief facts needed to be discussed are as under:-- Theplaintiff-respondent filed a suit before the Court of learned Civil Judge, Sr.Div. Court No. 2, West Tripura , Agartala (hereinafter referred to as “Court below”) for declaration and compensationamounting to Rs . 1,40,90,000/- and also fordeclaration and realization of the aforesaid amount and attachment of theproperty before judgment and appointment of receiver against the defendant-appellants,along with an interim prayer for attachment as per Schedule ‘A’ to ‘G’ of theplaint. 4. Itis also pleaded in the plaint that the defendant-appellant No. 1 Sri. Pallab Bhattacharjee hatched aconspiracy against the plaintiff-respondent in collusion with theappellant-defendant Nos. 3 and 4 namely, Sri Sunit Das and Sri. Bimalendu Chakraborty and taking lease of the ‘A’ Schedule land fromthe defendant-appellant Nos. 3 and 4 the defendant-appellant No. 1 illegallystarted construction of Bricks in the lease property hold in favour of the partnership firm, namely, M/s. Maa Saradadevi Industries,appellant-defendant No. 2, in which the plaintiff-respondent as well as thedefendant-appellant Nos. 3 and 4 are partners. 5.Further case of the plaintiff-respondent in the aforesaid suit is that thedefendant-appellant No. 4 instituted a suit for retention of thedefendant-appellant No. 2 Maa Saradadevi Industries (hereinafter referred to as “partnership firm”) and for dissolutionthereof and the said suit was registered as TS 54/2010 which is pending beforethe aforesaid Civil Judge, Sr. Div., Court No. 2. 5.Further case of the plaintiff-respondent in the aforesaid suit is that thedefendant-appellant No. 4 instituted a suit for retention of thedefendant-appellant No. 2 Maa Saradadevi Industries (hereinafter referred to as “partnership firm”) and for dissolutionthereof and the said suit was registered as TS 54/2010 which is pending beforethe aforesaid Civil Judge, Sr. Div., Court No. 2. The plaintiff-respondentsalso filed one counter claim under Rule 6(a) of Order VIII of the Code beforethe same Court which was registered as RS 100 (CC) of 2010 in connection withTS 54 of 2010. While the aforesaid TS 54/2010 and counter claim (TS 100 (CC) of2010) are pending before the learned Civil Judge, Sr. Div. therespondent-plaintiff filed the aforesaid TS 48 of 2012 for the relief, asstated supra, against the defendant-appellants herein. 6.Admittedly, on 17-11-2009 there was a settlement between the partners of thedefendant-appellant No. 2 and the partnership firm (Annexure-6 to the memo ofappeal) that the plaintiff-respondent would retire from partnership on receiptof the said amount of Rs . 25 lakhs and he himself or his representative, who is the co-sharers of the buildingsituated at old RMS Choumuhuni would transfer theshare of the said building to the defendant-appellant Nos. 3 and 4 on or before21st December, 2009 by a registered sale deed and thereafter he would retirefrom the partnership. 7.After filing of the aforesaid Misc. case No. 69 of 2012, learned Court belowwhile issuing notice upon the defendant-appellants on 12-3-2012 passed aninterim order of at­tachment of the suit proper ‘A’ to ‘G’ in the schedule andappointing a receiver, which was challenged by the defendant-appellants in FAONo. 2/2012 and the said FAO 02/2012 was disposed of by this Court on 13-3-2013directing the Court below to dispose of the aforesaid Misc. Case No. 69 of 2012after hearing the parties. In terms of the order of this Court, learned Courtbelow hear the parties and consequent thereto passedthe interim order. Hence, the instant appeal. 8. Mr. Chakraborty , learned counsel for the defendant-appellantwhile urging for setting aside the impugned order of attachment and appointmentof receiver would contend that the learned Civil Judge passed an order dated12-3-2012 in Misc. In terms of the order of this Court, learned Courtbelow hear the parties and consequent thereto passedthe interim order. Hence, the instant appeal. 8. Mr. Chakraborty , learned counsel for the defendant-appellantwhile urging for setting aside the impugned order of attachment and appointmentof receiver would contend that the learned Civil Judge passed an order dated12-3-2012 in Misc. Case No. 69 of 2012 arising out of TS 48 of 2012 appointingone receiver namely, Sri Jyoti Prakash Saha , in respect of the properties mentioned in theschedule of the plaint without issuing any notice to the defendant-appellantsand also passed an order of attachment before judgment regarding the propertiesin schedule A to G of the plaint which is totally against the object of theprovisions of Order XXXVIII, Rule 6 and Order XL, Rule 1, CPC. Order XXXVIII,Rule 6 of the Code casts a duty for passing an order of attachment relating tothe suit property only when the defendant fails to show cause to the notice andfails to furnish the security required, within the time prescribed by the Courtto satisfy the decree which may be passed in the suit, he again contended. 9.According to him, the issuance of show cause notice before passing order ofattachment and appointment of receiver is sine qua non. Order XL, Rule 1 of theCode empowers the Court to appoint receiver so that the defendant may notalienate the suit property and that has to be done considering the term “justand convenient” he contended. He also contended that in the instant case, thelearned Court below arbitrarily, whimsically passed the impugned order. Thelearned Court below also failed to consider that the appointment of a receiverin a suit deprives a person, who is in possession of the suit land underproperty, to enjoy the said property during the tenure of receivership. 10. Heagain submits that the present defendant-appellants earlier also filed anappeal being FAO 2/2012 challenging the order dated 12-3-2012 in the CivilMisc. Thelearned Court below also failed to consider that the appointment of a receiverin a suit deprives a person, who is in possession of the suit land underproperty, to enjoy the said property during the tenure of receivership. 10. Heagain submits that the present defendant-appellants earlier also filed anappeal being FAO 2/2012 challenging the order dated 12-3-2012 in the CivilMisc. Case 69/2012 and the same was disposed of by this Court on 13-3-2013 andthis Court at the time of disposal of the aforesaid appeal, as agreed to by thelearned counsel for the parties appearing on that date, did not disturb theorder dated 12-3-2012 taking note of the submission of the learned counsel forthe respondent-plaintiff, inter alia , that beforefiling the aforesaid appeal FAO 2/2012, the defendant-appellants have appearedbefore the Court below and also filed their objec­tion against the applicationunder Order XXXVIII, Rule 6 as well as Order XL, Rule 1, CPC which was pendingand the impugned order therein was not the final order, this Court directed thelearned Court below to dispose of the aforesaid Civil Misc. Application withina period of one month from the date of order in accordance with law afterhearing the parties and till then the appellant shall not dispose of any of theproperties as mentioned in the schedule ‘A’ to ‘G’ of the miscellaneousapplication/plaint without leave of the trial Court. 11. Hefurther submits that the defendant-appellants have already filed oneapplication under Section 10 of the Code on 10-6-2013 which is also pending before the learned trialCourt. Thus, it would be proper to set aside the impugned order dated 23-3-2013 with a direction to thelearned trial Court to decide the application filed under Section 10 of theCode after providing opportunity to the respondent-appellant in accordance withlaw. 12. Mr. Majumdar , learned counsel for theplaintiff-respondent while countering the submission of Mr. Chakraborty would contend that learned Court below did not commit any wrong passing theimpugned order of attachment as well as appointment of receiver, as thedefendant-appellants were given liberty to file their respective objectionagainst the prayer for attachment as well as appointment of receiver. Hefurther submits that the defendant-appellant No. 1 is running a Brick Kilnnamely, M/s. Raima Bricks on the land leased by thedefendant-appellant Nos. 3 and 4 in favour ofdefendant-appellant No. 2, in which plaintiff-respondent is a partner, evenbefore dissolution of the partnership amongst the partners. Hefurther submits that the defendant-appellant No. 1 is running a Brick Kilnnamely, M/s. Raima Bricks on the land leased by thedefendant-appellant Nos. 3 and 4 in favour ofdefendant-appellant No. 2, in which plaintiff-respondent is a partner, evenbefore dissolution of the partnership amongst the partners. He furthercontended that by resolution dated 17-11-2009 plaintiff-respondent was not retired from partnership firm, rather he hasintended to retire from the partnership firm after receipt of Rs . 25 lakhs . 13. Asthe instant appeal is filed by the defendant-appellants against the impugnedorder dated 23-3-2013 wherein learned Court below confirmed its earlier orderand attached the property in schedules ‘A to ‘G’ before judgment and appointedone advocate-receiver for Schedule A and B of the plaint, this Court is of theopinion that it would not be proper to express any opinion regarding the meritof the suit as the same would prejudice the party and the trial Court wouldalso be influenced. 14. Itwould also not be proper for the Court to express any opinion regarding theapplication filed by the defendant-appellant under Section 10 of the Codebefore the trial Court in connection with TS 48 of 2012 as issues involvedtherein are also the issues in TS 54/2010 filed by defendant-appellant No. 4and TS (100/CC) of 2010 filed by the plaintiff-respondent, which are pendingbefore the same Court relating to the same land leased, as that would affectthe right and interest of the parties involved in the aforesaid suits andmiscellaneous proceeding. 15.Hence, the question arises for determination in the instant appeal is as towhether a Court can exercise its power under Order XXXVIII, Rule 6 as well asOrder XL, Rule 1 without providing any opportunity to the defendants,particularly, without issuing any show cause notice and whether a Court shouldpass an order of attachment before judgment relating to the suit property whichis the subject-matter of another pending suit before the same Court between theparties regarding the same properties. 16.Upon going through the written statement filed by the plaintiff-respondent inTS 54/2010 as defendant, it appears that the plaintiff-respondent as defendantNo. 3 therein, took a specific plea inter alia , thathe is neither a necessary nor a proper party to the said suit and he is to bedeemed retired from the partnership business in pursuance of the resolutionagreement dated 17-11-2009 under Section 32(1)(a) of the Indian PartnershipAct, 1932 and the suit is liable to be dismissed for mis-joinder of party. It is also stated in the written statement that the suit isunwarranted as rendition of accounts of the partnership business has alreadybeen effected and acted upon by the partners of the partnership firm,defendant-appellant No. 2 herein. 17.Upon going through the aforesaid contention of the plaintiff-respondent, anyreasonable person would come to a conclusion that the plaintiff-respondent isno longer a partner of the defendant-appellant No. 2. But it would not beproper for this Court to express any opinion regarding that aspect also, as thetitle suit being TS 54/2010 is still pending before the trial Court. Moreso , admittedly, when a suit and counter-claim filedearlier is pending before the same trial Court between the parties insubsequent suit, it is the duty of the Court to balance the interest of boththe plaintiff and the defendants in the cases. But it appears that the learnedtrial Court though was informed by the defendant-appellants regarding the suitfiled by them earlier and the counter-claim filed by the respondent-appellantare almost on the same subject-matter and both are pending, the Court did noteven whisper anything in the impugned order regarding those cases, which is notonly unfair rather unwarranted and against the basic principle of naturaljustice. 18.Upon perusal of order dated 12-3-2012 passed in Misc. Case No. 69 of 2012, it appears that the learned trial Courtprior to appointment of advocate receiver Sri. Jyoti Prakash Saha and passingattachment order before judgment, in true sense did not issue any show causenotice. For ready reference, it would be proper to reproduce the relevantportion of the said order:-- “Misc.69/12 12-3-2012 .............................. I havecarefully perused the application and other relevant papers and after goingthrough the record it appears to this Court that appoint of receiver isurgently required to protect the assets of that partnership firm till disposalof the connected suit. So, Mr. Jyoti Prakash Saha , Id. Advocate of Tripura BarAssociation, Agartala is hereby appointed as Receiverof M/s ‘Man Sarada Devi Industries’ as well as M/s. ‘ Raima Bricks Unit-II’, Noabadi , Agartala , in respect ofthe properties mentioned in schedules ‘A’ & ‘B’ of the application untilfurther order and the properties mentioned in Schedules ‘A’ to ‘G’ of theapplication are also hereby attached till pronouncement of judgment or untilfurther order whichever is earlier. Mr. Jyoti Prakash Saha ,the appointed receiver will get a remuneration of Rs . 10,000/- per month from the fund of the M/s. ‘ Raima Bricks Unit-II’ until further order. Mr. Jyoti Prakash Saha ,the appointed receiver will get a remuneration of Rs . 10,000/- per month from the fund of the M/s. ‘ Raima Bricks Unit-II’ until further order. Theappointed receiver is requested to take necessary step in respect of theproperties of the aforesaid funds mentioned in schedules ‘A’ & ‘B’ and tosubmit his monthly report to this Court regularly. Furthera copy of this order to Mr. Jyoti Prakash Saha , appointed receiver for information and doingthe needful. Officeis directed to issue notices upon the defendant- O.Ps asking them to show cause by the next date as to why they should not be removedfrom the possession or custody of the properties mentioned in the schedules ofthe application and why those properties should not be committed to thepossessions, custody or management of the receiver till disposal of theconnected suit. Theplaintiff-petitioner is directed to file necessary requisites within 3 (three)days. ............................” 19.Before issuing notice the Court below has already decided to pass the order ofattachment and appointment of receiver and only then issued notice to thereceiver, thus the defendant-appellants were not provided opportunity to opposethe prayer of attachment and appointment of receiver before receiving thenotice. Thus, apparently prejudice was cause to them by not considering theterm “just and convenient” as intended by the makers of the statute. 20. In Sanatan Barik v. Purna Chandra Barik , AIR 2003 Orissa 127, the learned single Judge of the Orissa High Court taking note of an earlier decision of thesaid High Court in Sarada Dei v. Khirod Kumar Sahu , AIR 1983 Orissa 155 and the decision of the Madras High Court in T. Krishanaswamy Chetty v. C. Thangavelu Chetty , AIR 1955 Mad 430 states as under:-- “5.Petitioners challenged the above quoted order before the District Judge, Balasore in Miscellaneous Appeal No. 76 of 2000, andlearned District Judge, as per the impugned judgment dated 2nd January, 2001,has dismissed the appeal on the ground that: “9. Onconsideration of the facts and circumstances of the case and the contentionsraised by both the sides, I find that appointment of receiver for preservationof the suit land is necessary, because it is not known when the suit will bedisposed of. Onconsideration of the facts and circumstances of the case and the contentionsraised by both the sides, I find that appointment of receiver for preservationof the suit land is necessary, because it is not known when the suit will bedisposed of. Thus, I find no cogent reason to interfere with the impugnedorder.” (Underlined to put emphasis) 5A.Learned counsel for the petitioners rightly argues that the Courts below havefailed to properly understand the facts involved in the suit and to construethe meaning of the term “just and convenient” while considering the case as towhether a receiver should be appointed. In that respect a detailed discussionor documentation is not necessary in view of the settled principle of law inthe case of Sarada Dei v. Khirod Kumar Sehu , (1983) 55 Cur LT 461 : AIR 1983 Orissa 155). In that case this Court has followed the ratioin the case of T. Krishnaswamy Chetty v. C. Thangavelu Chetty ,AIR 1955 Madras 430. Even in another decision reported in the same journal at page 571 ( Muniammal v. P.M. Ranganatha Nayagar AIR 1955 Mad 571 . Hon’ble Ramaswami , J. has reiterated the same principles asthe guidelines while considering a matter relating to appointment of receiver. 6. Itappears from the order of the learned Civil Judge (Senior Division) that hemisconstrued the dispute to be a suit for partition and even then he did notapply the law in proper manner while considering the question of appointment ofa receiver. Plaintiff claimed for appointment of receiver on the ground ofwastage and mismanagement of the suit property in the hands of the defendants.Admittedly, the Courts below have not recorded their satisfaction regardingproof of the facture of wastage and mismanagement of the property by thedefendants. The above noted ground on the basis of which order was passed bythe Civil Judge for appointment of receiver and the reason for which the appellateCourt declined to interfere with the order of appointment of receiver are aliento 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 bejust and convenient, the Court may by order -- (a)appoint a receiver of any property......” Theterm ‘just and convenient’ does not mean the arbitrary whim or pleasure of theCourt to pass an order for appointment on any ground which stands against theequity. Sub-rule(1) of Rule 1 in Order 40 provides that “Where it appears to the Court to bejust and convenient, the Court may by order -- (a)appoint a receiver of any property......” Theterm ‘just and convenient’ does not mean the arbitrary whim or pleasure of theCourt to pass an order for appointment on any ground which stands against theequity. Appointment of receiver deprives a person from enjoyment of thatproperty during the tenure of receivership. Therefore, it has been regarded asa ‘harsh remedy’. ‘Just and convenient’ connotes what is right and justaccording to the judicial notion. Order for appointment of receiver should befor the protection of property or prevention of injury according to legalnorms. 7. Theimpugned order for appointment of receiver undoubtedly lacks the factualbacking and legal support. Hence, the impugned order for appointment ofReceiver stands rejected and accordingly the Civil Revision is allowed.” 21. Atthe time of disposing of the earlier appeal being FAO 2/2012 preferred by thepresent defendant-appellant, this Court specifically stated, inter alia :-- “Accordingly, learned Civil Judge, (Sr. Div.) Court No. 2, Agartala , West Tripura , isdirected to dispose of the aforesaid Civil Misc. Application within a period ofone month from today, in accordance with law, after hearing the parties, andtill then the appellant shall not dispose of any of the properties as mentionedin schedules A to G of the miscellaneous application without the leave of thetrial Court. Thedefendant-appellants shall also not disturb the receiver from discharging hisduties as per the impugned order. Theparties are directed to appear before the trial Court within a period of sevendays from today through their learned counsel. Withthe aforesaid order, the instant appeal is disposed of. Senddown the LCR forthwith.” 22.Though the learned trial Court disposed of the Misc. case No. 69 of 2012 withinone month in terms of the order of this Court but did not take note of theearlier Title Suit being TS 54/2010 filed by the defendant-appellant No. 4 andcounter claim being TS 100(CC) of 2010 filed by the plaintiff-respondent thoughthe plaintiff-respondent in his plaint, particularly, para 20 specifically stated as under:-- “20.That, it is pertinent to mention here that the defendant No. ( sic ) instituted TS 54/2010 for rendition of account anddissolution of partnership before the Civil Judge, Sr. Div. Div. West Tripura , Agartala which wasregistered as T.S. 54 of 2010 and transferred to Court No. 2 for adjudication.Decision in the matter is still pending and during the pendency of the suit, the assets and properties of M/s. MSDI costing of Rs . 1.08 crore (including all)was handed over to Shri Pallab Bhattacharjee illegally by the defendant No. 3 and 4.It is evident and also crystal clear from the content of the suit filed by thedefendant No. 4 that the plaintiff’s firm has in existence and period of leaseis still in continuation of partnership firm of M/s. MSDI” 23. Inthe written statement filed by the plaintiff-respondent in TS 54 of 2010wherein he is the defendant No. 3, also specifically stated that he is deemedto retire from the partnership business in pursuance of the resolution dated17-11-2009 under Section 32(1)(a) of the Indian Partnership Act, 1932. Thus,when the plaintiff-respondent himself stated regarding the earlier suit and hisstand in the said suit, that he was no longer the partner ofdefendant-appellant No. 4, plaintiff therein, the Court should not have passedthe impugned order of appointment of receiver and attachment under OrderXXXVIII, Rule 6 and Rule Order XL of the Code. 24. Itappears from the impugned order that the defendant-appellant has placed adecision of the Apex Court in Raman Tech and Process Engg . Co. v. Solanki Traders reported in (2008) 2 SCC 302 ,before the trial Court wherein the Apex Court noted as under:-- “Adefendant is not debarred from dealing with his property merely because a suitis filed or about to be filed against him, Shifting of business from one premises to another premises or removal of machinery toanother premises by itself is not a ground for granting attachment beforejudgment. A plaintiff should show, prima facie, that his claim is bona fide andvalid and also satisfy the Court that the defendant is about to remove ordispose of the whole or part of his property, with the intention of obstructingor delaying the execution of any decree that may be passed against him, beforepower is exercised under Order 38, Rule 5, CPC, Courts should also keep in viewthe principles relating to grant of attachment before judgment. 25. 25. Thedefendant-appellant also placed another decision of the Apex Court in Paramanand Patel (Dead) by LRs .v. Sudha A. Chowgule , 200911 SCC 127 : ( AIR 2009 SC 1593 ) before the Court below wherein the Apex Courtheld as under:-- “23. AReceiver, having regard to the provisions contained in Order 40, Rule 1 of theCode of Civil Procedure, is appointed only when it is found to be just andconvenient to do so. Appointment of a Receiver pending suit is a matter whichis within the discretionary jurisdiction of the Court. Ordinarily the Courtwould not appoint a Receiver save and except on a prima facie finding that theplaintiff has an excellent chance of success in the suit. 24. Itis also for the plaintiff not only to show a case of adverse and conflictclaims of property but also emergency, danger or loss demanding immediateaction. Element of danger is an important consideration. Ordinarily, a Receiverwould not be appointed unless a case has been made out which may deprive thedefendant of a de facto possession. For the said purpose, conduct of theparties would also be relevant.” 26.Though the learned trial Court referred the aforesaid citations referred by thedefendant but did not give any reason for not accepting those decisions. A Court should not be unfair to the justice seeker.When a justice seeker refers a case normally the Court should give reasons fornon-acceptance of the said decision unless the same is totally misplaced but inthe impugned order such reason is absent. 27.There is no doubt that Order XXXVIII, Rule 6 as well as Order XL, Rule 1 obviously has given discretion to the Court forpassing an order of attachment before judgment as well as for appointment ofreceiver in a given case considering the fact situation. It is to be rememberedthat the discretion has to be exercised in a reasonable manner to renderjustice, not to defeat justice. At the time of exercising discretion, the Courthad to consider that none of the parties in a suit should suffer for the orderof the Court. Obviously while adjudicating a case either of the parties willlose or win, which cannot be avoided, but the party which deserves justiceshould not suffer for an action of the Court as the Court is established torender justice as permissible under law. Obviously while adjudicating a case either of the parties willlose or win, which cannot be avoided, but the party which deserves justiceshould not suffer for an action of the Court as the Court is established torender justice as permissible under law. 28.According to this Court, the impugned order for appointment of receiver as wellas the order of attachment issued by the learned Court below undoubtedly lacksfactual backing and legal support. Hence, the impugned order of appointment ofreceiver as well as the order of attachment before judgment is hereby setaside. 29. Asadmittedly an application under Section 10 of the Code and some other suitsalmost on similar issues are pending before the Court below, it would be properfor the Court below to dispose the said application as well as those suits atan earlier date. 30.With the aforesaid order, the instant appeal is allowed. No order as to costs. Appealallowed.