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Ravi Lakshmaiah Vs. Nagamothu Lakshmi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O.No. 180 of 1969
Judge
Reported inAIR1971AP380
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 1 - Order 40, Rule 1
AppellantRavi Lakshmaiah
RespondentNagamothu Lakshmi and anr.
Appellant AdvocateK. Suryanarayana, Adv.
Respondent AdvocateG. Venkatarama Sastry, Adv.
Excerpt:
.....lower court justified in appointing receiver. - - in those circumstances we are of the opinion that the court below was perfectly justified in appointing a..........the plaintiff when the plaintiff was in possession does not mean that he was in possession of the suit property. he is now attempting to secure possession. thus, there is a scramble for possession between the second defendant on one hand and the appellant on the other. the appellant has no yet been made a party plaintiff in the suit as his application for that purpose is still pending. in those circumstances we are of the opinion that the court below was perfectly justified in appointing a receiver.7. the object of appointment of a receiver is the safeguarding of the property for the benefit of those who would ultimately be entitled to it. where the property is as it were in media in the enjoyment of none, it is common interest of all parties that the court should prevent a scramble......
Judgment:

Kuppuswami, J.

1. The appellant herein is the sister's son of the plaintiff in O.S. No. 66 1966 Sub-Court, Vijayawada. The plaintiff in that suit filed the suit for partion and separate possession suit for partion and separate possession of her 1/2 share in the suit schedule properties which belonged to her sons Venkatramaiah who died on the 30th December 1963. The two defendants to the suit are his widows. The first defendant supported the plaintiff. but the second defendant contend that she was entitled to the whole property of their deceased husband under an unregistered will executed by him on 28-12-1963. The plaintiff stating that she was residing in a portion of the houses belonging to Venkatarmaiah applied for an injunction in I.A.No. 391 of 1969 restoring the second defendant from interfering with her possession. On a undertaking given by the second defendant that she had no objection to the plaintiff being in possession of the northern portion of the house till the suit was disposed of the application for injunction was ordered accordingly and the plaintiff remained in possession of that portion. She died on the 3rd March 1969. The appellant herein claiming that the plaintiff's entire property had been bequeathed to him under a registered will dated 5-2-66 filed I.A. 992 of 1969 to implead him as a party and continue the suit. When this application was called on 20-3-69 the second defendant's advocate appeared and took notice and prayed for time for filling counter. The petition was accordingly posted to 25th April 1969. Meanwhile on 10-4-69 the second defendant filed I.A. no. 1194 of 1969 to restrain the appellant herein from interfering with her possession of the suit house which is item 4 of the plaint 'A' schedule. Interim injunction was granted on 11-4-69. The appellant thereupon filed I.A. 1284 of 1969 to vacate the said interim injunction.

2. The court below came to the conclusion that the second defendant was not in possession of the northern portion of the house, as the plaintiff was admittedly in possession of that portion in view of the undertaking given by the second defendant in the prior I.A. and there was no proof that the second defendant subsequently got into possession of that portion. It also came to the conclusion that the appellant was not in possession of the said portion. In the circumstances of the case in considered it just and convenient to appoint a receiver for the northern portion of the house. The court below therefore vacated the interim injunction order but appointed Sri S.R. Das, as receiver to take possession of the northern portion of the suit house. The receiver was directed to submit a report as to the feasibility of its being given on rent. This appeal is against the said order and is preferred by the respondent in I.A. No. 1194 of 1969.

3. The main contention urged on behalf of the appellant is that having held that the applicant was not in possession of the northern portion of the house the court below should have merely vacated the interim injunction. It erred ion appointing a receiver. It was submitted that in the absence of any application for the appointment of a receiver. a receiver cannot be appointed in an application for an injunction.

4. In support of this contention, reliance was placed upon a decision in Narayana Dossju v. Madras H.R.E. Board. : AIR1951Mad706 . In that case the plaintiff who was in possession applied for an injunction restraining the defendant from interfering with his possession. It was held that where the plaintiff seeks the assistance of the court to restrain the defendant by an injunction from interfering with his possession and enjoyment of certain properties it is not open to the court to dispossess the plaintiff who was admittedly in possession of the properties by appointing a receiver without an application being made by the defendant to that effect. We do not consider this decision as an authority for the proposition that in no case can be receiver be appointed by the court in an application for a injunction. In that case the plaintiff was admittedly in possession and it was held that the admitted possession of the plaintiff cannot be disturbed by an order of appointment of a receiver without even an application being made by the defendant to that effect. In the present case it was found by the court below that the applicant (who is the second defendant) had no possession and therefore. the injunction could not be granted. At the same time the court also found that the respondent also was not in possession and was trying to take possession of the property. In the circumstances the court below considered it a fit case for the appointment of a receiver.

Under Order 39 Rule 1 C.P.C. the court may be order grant a temporary injunction or make such other order for the purpose of staying and preventing the wasting damaging alienation sale removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders, thus the court has wide powers not only to grant a temporary injunction, but to make such other order for any of the purpose referred to above. This would certainly include an order for the appointment of a receiver. It is true that in : AIR1951Mad706 (supra) the learned Judges observed that the appointment of a receiver cannot be justified by invoking the words 'make such other order' in Order 39 Rule 1 as it could not be stated that they contemplated the appointment of a receiver. These observations were really unnecessary for the purpose of that case as it was concerned with a case where the plaintiff was in possession and the learned Judges rightly held in such circumstances that the plaintiff could not be disposed in his application for injunction without an application for appointment of a receiver by the defendant. Further under Order 40, Rule 1 C.P.C. the court has the power to appoint a receiver where it appears to the court to be just and convenient. The said order does not require that there should be an application for the appointment of a receiver. Even without such an application if the facts and circumstances are brought to the notice of the court justifying the appointment of a receiver it may do so suo motu even without an application by way of the parties for that purpose. In this case, the court, while hearing the application for an injunction came to the conclusion that tit was just and convenient to appoint a receiver. We do not find anything either in Order 39 or Order 40 C.P.C. which would preclude the court from passing such an order. On the other hand, on a reading together of Order 39 and Order 40, C.P.C. we are of the view that the court is entitled to pass an order appointing a receiver even in an application for an injunction under Order 39 C.P.C. The decision of the Madras High Court in : AIR1951Mad706 (supra) was distinguished by the same High Court in D.K. Raja v. P.S.Kumaraswami Raja, : AIR1955Mad360 . It was held that in view of the terms of Order 39 Rule 1 C.P.C. allowing the court to make such other order there could been objection to the appointment of receiver in an application for an injunction. if the plaintiff wants it in the alternative. it was no doubt observed; 'As stated in : AIR1951Mad706 , if the plaintiff does not ask for a receiver and there is no application to that effect by the defendant it is not own tot he court purporting to act under Order 39 Rule 1 C.P.C. to appoint a receiver without any request from the parties.' As pointed out earlier in the case reported in : AIR1951Mad706 (Supra) the plaintiff was admittedly in possession and if an injunction was not to be granted but if the appointment of a receiver, it could not be done without such a request on the part of the defendant. In this case, however, no such difficulty arises, as the second defendant who applied for injunction was herself not found to be in possession. The court below also found that the respondent to the application was also not in possession and therefore, there was no question of anybody's possession being disturbed by appointment of a receiver.

5. In Chummar v. Kunjamathu. (AIR 1952 Trav-Co 331) it was held that there was no prohibition contained anywhere in the Code of Civil Procedure that the court should not appoint a receiver suo motu in the absence of an application in that behalf filed by any of the parties. It is competent for a court to appoint receiver suo motu if it finds that step to be just and convenient in the circumstances of the case. They relied upon the decision in Dar Parsed v. gopikishen. ILR 36 All 19 = (AIR 1914 All 4 (2) ) in which it was held that an order of appointment of receiver is not import or illegal merely because it was made suo motu. The decision in AIR 1952 Trav -Co. 331 (supra) was followed by a Bench of the same court in Kochy v. Kalu. AIR 1952 trav-Co 30. They referred to the decision in : AIR1951Mad706 (supra) and the observation contained therein that no authority was cited in support of the procedure adopted in appointing a receiver when the application was not for that relief. but for some other reliefs and pointed out that there was no death of authorities on this point and that the case in AIR 1914 All 4 (2) (supra) is a decision directly in point. We are in agreement with the view expressed by the Travancore-Cochin High Court in the above decision and in : AIR1955Mad360 (supra).

6. It was further argued by the learned counsel for the appellant that even assuming that it is permissible for the court to appoint a receiver in an application for an injunction, the circmsustances of the case do not allegation or proof of waste or damage. In this case the facts found by the courts below are that the second defendant-applicant is not in possession of the northern portion the suit house. The deceased plaintiff was in possession thereof by virtue of the undertaking given by the second defendant in the application for injunction filed by the plaintiff not reformer occasion. After her death the appellant did not get into possession of the property. He is no doubt claiming under a registered will executed by the plaintiff in is favour but the will is not admitted. Though his case is that he was living with the plaintiff. it is admitted that the belongs to another village and he has got his own house in that village. The mere fact that he was permitted to reside with the plaintiff when the plaintiff was in possession does not mean that he was in possession of the suit property. He is now attempting to secure possession. Thus, there is a scramble for possession between the second defendant on one hand and the appellant on the other. The appellant has no yet been made a party plaintiff in the suit as his application for that purpose is still pending. In those circumstances we are of the opinion that the court below was perfectly justified in appointing a receiver.

7. The object of appointment of a receiver is the safeguarding of the property for the benefit of those who would ultimately be entitled to it. Where the property is as it were in media in the enjoyment of none, it is common interest of all parties that the court should prevent a scramble. and a receiver will readily be appointed. Wide Kerr on Receivers 13th Edition page 7. In Halsbury's Laws of England (Vol. 32 page 396) it is stated 'if no one is in possession of the property the court will appoint a receiver almost as of course, to prevent a scramble and to preserve the property until the rights of the parties are ascertained.'

8. Reference may also be made to the oft-quoted passage in Own and Gutch v. Human (18533) 4 HLC 997 at page 1032 where Lord Granworth. L.C. observed as follows. 'Where. indeed the property is as it were in medio in the enjoyment of no one the court can hardly do wrong in taking possession, it is common interest of all parties that the court should prevent a scramble ...............'

We, therefore agree with the court below that it is just and convenient to appoint a receiver. The appeal is dismissed with costs.

9. Appeal dismissed.


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