1. This appeal is filed by defendants 19, 21 to 26 against the order passed by the learned 1st Additional Civil Judge, Mysore, appointing Dr. M. L. Mariswamy as a receiver regarding the 1st item of the property in dispute. The only question before this Court is as to whether the appointment of Dr. Mariswamy should be accepted or as to whether defendant No. 19 should be appointed or the court below should be directed to make a fresh selection of an appropriate person for being appointed as receiver.
2. Absolute impartiality and thorough disinterestedness being the essential qualification for a receiver, a party to a litigation should not be appointed a receiver except under very special circumstances or with the consent of all parties. In England it is stated that a party to an action cannot propose himself as a receiver without the leave of the Court. It has been stated that 'It is the settled role that one of the parties to a cause shall not be appointed receiver without the consent of the other party unless a very special case is made,' This principle of law has been followed by all the Indian Courts. Thus it is well settled that if a case for appointment is made out, the Court will not appoint a party to the action as the receiver unless by consent or there are special circumstances justifying such appointment. We have, therefore, to see in the present case whether all the parties consent for the appointment of defendant No. 19 as receiver and secondly whether there are special circumstances warranting his appointment.
3. The learned Advocate for the appellant supported by the respondent Nos. 5 to 7 contended that defendant No. 19 may be appointed as receiver. The sole ground for rejecting the claim was that he was staying away from Mysore. As against this, the other contesting respondents submitted that respondent No. 19 is not a fit and proper person and is not disinterested. Further, as has been stated by him in the written statement, his interest in Item No. 1 has been sold away in execution of the decree against him and now he has no interest in the property. In view of what is contained in the written statement, it was submitted that defendant No. 19 has virtually no interest in the properties and, therefore, he ought not to be chosen for being appointed as receiver.
4. In support of the contention that defendant No. 19 should be appointed as receiver, the learned counsel for the appellants and respondents 5 to 7 cited two decisions. The first is the judgment of the Orissa High Court reported in : AIR1965Ori28 Jasoda v. Satyabhama, and the observations in the said case are given below:--
'Normally, one of the parties to a cause should not be appointed receiver without the consent of the other party unless a very special case is made out. The Court should not appoint a party as receiver where the Court cannot rely on honest and disinterested management on the part of the party seeking to be appointed.
Absolute impartiality as between the parties to the litigation is an indispensable qualification of a receiver and upon an application for his removal the Court may properly consider his past relations to the parties as well as his present sympathies. If by reason of interest shown by him the efficiency of the receiver as an officer of the court is impaired, the Court will be Justified in removing him. Where the attitude of a receiver appointed En a suit for partition is inconsistent with the attitude of a receiver, i. e., where he is considering his own personal interest to the exclusion of interests of the parties whose representative he is and whose benefit should be his concern, such receiver should be removed.'
The next is the judgment of the Allahabad High Court, : AIR1964All366 , Ram Khelawan v. Sudama Devi, in which case, it appears from the facts of the case that the defendant who was a party was appointed as receiver.
5. In so far as the applicability of the judgment of the Orissa High Court to the facts of the present case is concerned, it may be seen that defendant No. 19 does not have a major share in the property and Further as is disclosed, It is stated, that Ms share in the property has been sold. Further the fact that in one particular case, the Court came to the conclusion that a party to a litigation should be appointed as receiver does not mean that in other case wherever parties seek for being appointed as receiver, they must be appointed. Under the circumstances, I am of the view that this is a case in which the claim of defendant No. 19 for being appointed as receiver has been rightly rejected. I therefore, decline to set aside that part of the order by which the learned Judge has declined to appoint defendant No. 19 as receiver.
6. In so far as the appointment of DR. Mariswamy is concerned, it has been Stated that Dr. Mariswamy has filed a Criminal Case against T. L. S, Uyadhyaya, the brother of the 1st appellant, and that on this account, there is ill feeling between him and the other members of the family. It is on record that Dr. Mariswamy is himself a tenant of the property in Schedule 1 regarding which he was appointed a receiver and it is alleged that he is taking advantage of the dispute among the members of the family and he has not paid rent for several months.
7. Even though the choosing of a person for being appointed as receiver is a matter of judicial discretion to be determined by the Court having regard to the circumstances of the case, it is competent for the appellate court to set aside the order when it is found that the selection and appointment of a particular person has been made without proper exercise of judicial discretion. In the present case, having regard to the facts stated earlier and having regard to the objections raised by some of the parties to the suit, I think that the appointment of Dr. Mariswamy as receiver is not properly made. Accordingly, the order of the Court below appointing Mariswamy is set aside and the Court below is directed to select a proper person bearing in mind the fact that he has got to be a disinterested person and not concerned with the litigation going on between the parties. The learned Judge is directed to make the appointment as expeditiously as possible and after hearing the parties, to the proceedings. The Court below may consider the appointment of a suitable member of the Mysore Bar for being appointed as receiver and make such appointment before 15th April 1971. No costs.