1. This is an appeal brought by the 1st defendant as against the order of the Subordinate Judge, Kurnool, in I.A. No. 546 of 1956 in O. S. No 57 of 1956 appointing a receiver in respect of items 1 to 14 of the plaint schedule under Order XL. Rule 1, Civil Procedure Code. The suit was filed by the respondent herein for declaration of his title to the suit properties, for recovery of possession and for recovery of mesne profits for the years 1953-56 at the rate of Rs. 2000/- per year. His case is that he obtained a decree on the foot of a mortgage as against the appellant herein and that in execution of the decree he purchased the properties in a Court auction and obtained delivery of possession on 2-4-1950.
According to the case set out in the plaint the appellant herein trespassed upon the land and there were proceedings before the Judicial First Class Magistrate, Adoni under Section 145 of the Criminal Procedure Code. As the Magistrate directed that the defendants were entitled to be in possession of the land, the suit had to be instituted for recovery of possession and for mesne profits. The respondent herein contended that no actual delivery was obtained on 2-4-1950 and that the Suit was barred wider Section 47, Civil Procedure Code. The Subordinate Judge of Kurnool held that the plaintiff made out a prima facie case & that a receiver should be appointed in the suit. As against that order the 1st defendant has preferred the appeal to this Court.
2. Sri Mrutyunjaya Sastry. the learned advo-tate for the appellant, contended that no receiver could be appointed as Order XL, rule 1 Clause (2) appointed to the case. His contention is that the words 'any person' in Order XL Rule 1 (2) include also a party to the suit' and is not restricted o strangers only. In support of this contention he relied on the view expressed by Spencer J. in Kumaraswamy v. Pasupathia Pillai, AIR 1920 Mad 986 as also the Full Bench Judgment of the Allahabad High Court in Anandi Lal v. Ram Sarup, AIR 1936 All. 495. In AIR 1920 Mad 986 there is a difference of opinion between Sadasiva Aiwr, J., and Spencer, J. in regard to the interpretation of the words 'any person' in Order XL Rule 1(2).
According to Sadasiva Aiyer, J. Order XL, Rule 1(2) prevented the Court from ejecting a person not a party to the suit unless some one or more or all of the parities to the suit had such a right. The learned Judge followed the Judgment in a unreported case, A.A.O. No. 8 of 1912 to which he was a party. Spencer, J. on the other hand held that the words 'any person' in Order XL, Rule 1(2) are sufficiently wide and should not be confined to persons who were not parties to the suit as was held in the unreported case of the Madras High Court in A.A.O. No. 8 of 1912.
The view of Sadasiva Aiyar. J. has been followed by a later Bench of the Madras High Court in Vythilinga Pandara Sannadhi v. Thiagarajaswami Devasthanam. AIR 1932 Mad 193. Ramrsam J. delivering the Judgment of the Bench held that Sub-clause (2) referred only to a case where the person in possession is a third party and the parties to the suit have no present right to disturb him. Apart from She Bench decision there is an earlier decision of the Madras High Court in Natesa Pandara Sannadhi v. Ramalingam Pillai, 24 Mad LJ 658 wherein the same view was taken. The learned Judges held that Order XL Rule 1(2) was intended to protect only third persons not parties to the suit.
The latest decision of the Madras High Court referred to on this point is that of a single Judge Horwill, J. In Subrahmanyam Chettiar v. Ethira-julu Chettiar, 1938-1 Mad ,LJ 249: (AIR 1938 Mad 325). The decision of the Allahabad High Court strongly relied on by the learned advocate for the appellant was dissented from by the learned Judge. There is however not much discussion on the interpretation of Order LX Rude 1(2) Civil Procedure Code. So far as the other High Courts are concerned the view appears to be perfectly unanimous. In Damodar Moreshwar v. Radhabai Damo-dar, ILR (1939) Born 82 at p 85: (AIR 1939 Bom 54 at p. 55) Sir John Beaumont, C. J. considered this question and observed in the following terms:--
'It seems to me that the meaning and effect of this Sub-rule (Order XL, Rule. 1(2)) is perfectly plain; It is an enactment for the benefits of third parties and means that the wide words of Sub-rule (1) are not to be construed to justify the Court in removing from possession or custody of property a third party who has got a good title to such possession or custody as against the parties to the suit. The words 'whom any party to the suit has not a present right so to remove merely mean whom no party to the suit has a right so to remove.'
The Judgment of the Allahabad High Court in AIR 1936 All 495 was dissented from. A similar view was taken by the Calcutta High Court in Udaya-chand Mahtab v. Bibhuti Bhusan Das, ILR (1944) 2 Cal 194: (AIR 1945 Cat 298). At page 197 (of ILR Cal): (at p. 299 of AIR) the learned Judges held that Sub-Rule 2 of Order XL, Rule 1 covers only the case of removal of a person who is not a party to the suit. They held that the construction put by the Allahabad High Court in AIR 1936 All 495 would have the effect of almost nullifying Clause (b) of Sub-rule 1 of Order XL, Rule 1.
An identical view is taken by the Lahore, Pat-na and Orissa High Courts Amar Nath v. Mt. Te-hal Kuar. AIR 1922 Lah 444, Banwari Lal v. Baldeosah, AIR 1942 Pat) 240, Gauri v. Nilubati, : AIR1953Ori51 . The correctness of the Full Bench decision in AIR 1936 All 495 was also canvassed before the Allahabad High Court and a reference was made to the Full Bench, in Mt. Tulsha Devi v. Shah Chironjulal AIR 1943 All 1. On the particular facts of ihe case the learned Judges thought it unnecessary to decide the question and directed the amendment of Order XL, rule I Sub-rule (2) so as to make it clear that it related only to third parties. On the interpretation of the rule I am clearly of the opinion that the words 'any person' relates only to strangers and not to parties to the suit. I follow the view taken by all the High Counts excepting that taken in AIR 1936 All. 495. I therefore overrule this objection raised by the learned advocate for the appellant.
3. The next question that arises for decision is whether the court, below was wrong in holding that a prima facie case has not been made out and that it is not just and convenient to appoint a Receiver. As pointed out by the learned judge a prima facie case is made out as the respondent has produced Exs. A-1 and A-2 the certified copies of the sale certificates and A-3 a certified copy of the delivery, receipt. The question as to whether actual delivery was taken or not is a matter to be considered in the suit.
I agree with the Subordinate Judge that a prima facie case is made out and that it is just and convenient that a receiver should be appointed. The appeal consequently fails and is dismissed with costs. It is however agreed between the parties that the receiver might continue the appellant in possession of the property as a tenant for one more year on a condition that he deposits Rs. 1850/- onor before 10th May, 1958 .to the Receiver and furnishes security for Rs. 150/- to the satisfaction ofthe Subordinate Judge within one week after reopening of the Court below. The suit is directed tobe disposed of by the Subordinate Judge beforethe end of August, 1958.