Skip to content


ishwara Joisha Vs. Saraswathi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberMiscellaneous Appeal No. 67 of 1956
Judge
Reported inAIR1959Kant35; AIR1959Mys35; ILR1958KAR364; (1958)36MysLJ484
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 1 - Order 40, Rule 1
Appellantishwara Joisha
RespondentSaraswathi Amma and ors.
Appellant AdvocatePadubidri Raghavendra Rao, Adv.
Respondent AdvocateK.R. Karanth, Adv.
Excerpt:
.....india. the said power under article 226 shall be exercised with the great caution and also in furtherance of public interest and not merely on the making out of a legal point. - while matters stood like this, the second respondent gangadhara joisha, who is the son of the appellant, represented by his grand-mother saraswathi amma, filed a suit in o. in the circumstances and in view of the fact that an application filed by the third respondent previously for appointment of a receiver had been rejected only on the ground that the appointment of a receiver was likely to come in the way of the appellant paying the instalments regularly and that he had failed to pay the instalments and that in the meanwhile the present suit had been filed by his minor son, the lower court was justified in..........absolutely no justification to prevent him from realising the fruits of his decree and that the suit filed by respondents 1 and 2 was a collusive one and that if the court thought it necessary in the interests of justice he should not execute the decree and realise the fruits of the decree, a receiver may be appointed and the properties put in the possession of the receiver pending disposal of the original suit.the learned judge thought that it was just and convenient to appoint a receiver and put the properties in his possession to prevent the appellant from realising the yield from the lands and yet make no honest attempt to discharge his obligations to the third respondent and thus jeopardise the interests of respondents 1 to 3. it is the legality of this order that is now being.....
Judgment:

Hombe Gowda J.

1. This miscellaneous appeal is directed against the order of thy Principal Subordinate Judge of South Kanara at Mangalore on R.I.A. 2741 of 1956 in O.S. No. 61 of 1954 appointing a receiver to take possession of and manage the suit schedule properties.

2. The facts which led up to the present appeal are as follows; Ganapathi Bhatta (third respondent) obtained a decree against the present appellant and the second respondent on the foot of a mortgage bond executed by the present appellant. The suit schedule properties were subjected to two other prior mortgages. The third respondent took out execution proceedings and got the properties sold in execution for his decree amount but the appellant filed an application for setting aside the sale and the same was being contested.

In the meanwhile the Madras Act I of 1955 came into force. According to the said Act a decree-holder was not entitled to enforce the decree and bring the properties to sale without affording an opportunity to the judgment-debtor to pay the decree amount in instalments. The appellant made an application for such a relief and for the sale already held being set aside.

Accordingly the sale of the suit schedule properties was set aside and the appellant was permitted to pay the decree amount in four equal instalments. The third respondent then made an application for appointment of a receiver. That application was rejected by the Court on the ground that the appointment of a receiver and disturbance of the possession of the appellant was likely to prejudice the appellant substantially inasmuch as he would not be in a position to realise any money from the properties in dispute and pay the instalments regularly.

The appellant did not pay the instalments as per the order of the Court. While matters stood like this, the second respondent Gangadhara Joisha, who is the son of the appellant, represented by his grand-mother Saraswathi Amma, filed a suit in O.S. No. 61 of 1954 in the Court of the Principal Subordinate Judge, Mangalore for a declaration that the alienations effected by the present appellant in respect of the suit schedule properties were not binding on him; that the debts incurred by the appellant were all tainted with immorality and illegality and that he was entitled to get his share free from all encumbrances.

In the course of the plaint the second respondent alleged that the appellant was a gambler and was residing at Puttur and was not managing the suit schedule properties properly and had incurred the several debts for his immoral and illegal purposes. The third respondent is also impleaded as a party. Apprehending that the third respondent would put me decree into execution since the appellant had not paid the instalment the second respondent made an application to the Court for an order of temporary injunction under Order XXXIX, Rule 1 of the Code of Civil Procedure in Original Suit No. 61 of 1954.

The third respondent opposed the application. While the matter was being considered by the Court, it was submitted that the properties were likely to be sold in execution of the decree since the appellant had not made any attempt to pay the instalments.

It was also submitted that the appellant was not properly managing the properties and was residing at Puttur. The third respondent submitted to the Court that since the appellant had not paid the instalments he was entitled to put the decree into execution and that there was absolutely no justification to prevent him from realising the fruits of his decree and that the suit filed by respondents 1 and 2 was a collusive one and that if the Court thought it necessary in the interests of justice he should not execute the decree and realise the fruits of the decree, a receiver may be appointed and the properties put in the possession of the receiver pending disposal of the original suit.

The learned Judge thought that it was just and convenient to appoint a receiver and put the properties in his possession to prevent the appellant from realising the yield from the lands and yet make no honest attempt to discharge his obligations to the third respondent and thus jeopardise the interests of respondents 1 to 3. It is the legality of this order that is now being challenged in this appeal.

3. The only serious objection is as regards the order of appointment of the receiver having been passed by the learned Judge without an application in writing having been filed by any one of the parties. Sri Raghavendra Rao, the learned counsel for the appellant, contended that the learned Judge was entirely wrong in appointing a receiver while disposing of an application filed by respondents 1 and 2 for an order of temporary injunction under Order XXXIX, Rule 1 of the Code of Civil Procedure andwithout an application being filed by any of the respondents for that relief.

He strongly relied upon the observations of the Madras High Court in Narayana Dossju Varu v. Madras Hindu Religious Endowments Board, : AIR1951Mad706 . It is no doubt true that some of the observations made by their Lordships in the above case lend support to the contentions of Sri Raghavendra Rao but the facts of that case are distinguishable from the present case. It is conceded by Sri Raghavendra Rao that if the Court comes to the conclusion that it is just and convenient to appoint a receiver to take possession and manage the properties that are in dispute, the Court can appoint a receiver suo moto and that no application in that behalf would be necessary.

It is clear from a perusal of the order of the lower Court that Sri Karanth, the learned counsel for the third respondent pressed the Court to appoint a receiver to take possession and manage the properties and to safeguard the interests of his client and that of respondents 1 and 2 also during the pendency of the suit. Respondents 1 and 2 submitted that they had no objection for the appointment of a receiver. But the appellant opposed the oral application for the appointment of a receiver.

The appellant as already stated had not paid any amount towards the discharge of the instalment decree that the third respondent had obtained and had actually allowed the properties to be sold once in execution of the decree. In the meanwhile respondents 2 and 3 had filed the present suit challenging the alienations made by the appellant.

In the circumstances and in view of the fact that an application filed by the third respondent previously for appointment of a receiver had been rejected only on the ground that the appointment of a receiver was likely to come in the way of the appellant paying the instalments regularly and that he had failed to pay the instalments and that in the meanwhile the present suit had been filed by his minor son, the lower Court was justified in coming to the conclusion that it was just and convenient to appoint a receiver and thus safeguard the interests of the parties.

It cannot reasonably be urged that the learned Principal Subordinate Judge has not exercised his discretion properly. We do not find any valid ground to interfere with the said order.

4. For the reasons staled above, this appeal fails and is dismissed with costs.

5. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //