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2013 DIGILAW 488 (MAD)

N. Kumaravel v. G. Narasimhan

2013-01-22

VINOD K.SHARMA

body2013
Judgment :- Vinod K. Sharma, J. 1. The plaintiffs/applicants have filed suit for declaration with consequential relief of possession of 2/6th share by way of partition of the suit property. 2. It is submitted that the property was in the name of defendant no.1, which has been gifted to defendant no.5 by way of three different settlement deeds. The plaintiffs/applicants have challenged the settlement deeds to be not binding on the plaintiffs/applicants, on the ground that the property was ancestral property, therefore, defendant no.1 did not have right to execute settlement deeds in favour of defendant no.5. 3. Along with the suit, the applicants/plaintiffs have filed the following applications: (i) O.A.No.471 of 2012: An application for appointment of Advocate Receiver to collect the rent of the suit property, which has been admittedly rented out by the defendant no.5, pending disposal of the suit, on the plea that in the event of success in the suit, it will be difficult for the plaintiffs/applicants to recover the rent, which may be falling to their shares. The principles relating to appointment of Receiver of property can be summed up as under: "1. The object of appointing a Receiver is to preserve the subject matter of litigation pending decision of the case. 2. Court has the discretion to appoint Receiver when it appears to the Court to be just and convenient to do so. 3. The discretion must not be exercised arbitrarily or in an unregulated manner – It must be exercised judicially and cautiously and in accordance with the legal principles on a consideration of the whole circumstances of the case bearing in mind that 'discretion' is the power to do justice and it in itself implies a vigilant circumspection and care. 4. Appointment of Receiver is considered to be a very harsh remedy and hence the jurisdiction has to be exercised only in extreme case with atmost care and caution. 5. Court while considering question of appointment of Receiver does not finally decided on merit of the case. 6. A Receiver cannot be appointed merely because it is expedient to do so; nor merely because it will do no harm to do so." On consideration, I find no merit in this application. 5. Court while considering question of appointment of Receiver does not finally decided on merit of the case. 6. A Receiver cannot be appointed merely because it is expedient to do so; nor merely because it will do no harm to do so." On consideration, I find no merit in this application. It is admitted case of the plaintiffs/applicants, that the property was in the name of defendant no.1, therefore, it is yet to be established whether it was ancestral property and also to see whether the settlement deeds executed in favour of defendant no.5 are liable to be set aside. As on date, the plaintiffs/applicants have no right in the suit property. Merely on presumption that in the event of success, the plaintiffs/applicants would be entitled to 2/6th share in the rent, cannot be the ground to appoint Advocate Receiver, pending disposal of the suit. (ii) O.A.No.472 of 2012:This application has been moved for grant of interim injunction restraining respondents from alienating or encumbering the suit property, during pending disposal of the suit. This application again deserves to be dismissed. No irreparable loss is likely to be caused to the plaintiffs/applicants, as the right of plaintiffs/applicants are protected under the principle of lis pendense and Pendente lite purchaser would step into the shoes of vendors and is bound by the decree to be passed between the parties, which will be executable against pendente lite vendees also. (iii) Tr.A.No.4987 of 2012: This application has been filed under Order XIV Rule 8 of O.S. Rules r/w Section 24 of the Code of Civil Procedure for transfer of O.S.1908 of 2012, pending in the Court of learned I Assistant City Civil Court, Chennai to this Court for being tried along C.S.No.376 of 2012 filed by the applicants/plaintiffs. O.S.1908 of 2012 has been filed by defendant no.5, restraining plaintiffs/applicants from interfering with the possession of defendant no.5. The suit is a simple suit for injunction, where defendant no.5 has to prove possession only. Whereas the question of title is to be decided in C.S.No.376 of 2012. The cause of action in both suits cannot be said to be same. Therefore, no ground is made out to transfer O.S.1908 of 2012 in this Court for trial with C.S.No.376 of 2012. Therefore, this application, being devoid of any merit, is also ordered to be dismissed. 4. Consequently, all the applications are dismissed. No costs.