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Rasi Dei Vs. Bikal Maharana and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 7 of 1964
Judge
Reported inAIR1965Ori20
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1; Code of Criminal Procedure (CrPC) - Sections 144
AppellantRasi Dei
RespondentBikal Maharana and ors.
Appellant AdvocateR.N. Misra and ;S.K. Dey, Advs.
Respondent AdvocateM.N. Das and ;P. Roy, Advs.
DispositionAppeal allowed
Excerpt:
.....is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - hence the court should not appoint a receiver of property in the possession of the defendant who claim it by legal title, unless the plaintiff can show prima facie that he has a strong case and good title to the property. the court must consider whether special interference with the possession of defendant is required, there being well founded fear that the property in question will be disputed or other irreparable mischief may be done unless the court gives protection......filed the suit for a decree for partition of their respective shares. the total area of the suit lands is said to be 5.656 acres. the defendants are said to be members of a joint hindu family. the 11 plaintiffs are each purchaser for a specific portion of property from different members of the defdts' family. the total acquisition of the plaintiffs by purchase is said to be 3 acres. on the plaintiffs' application for receiver the learned subordinate judge appointed one sri dibakar jena of souri gram punchayet as receiver. hence this misc. appeal filed by defdt no. 3.3. the learned subordinate judge did not give any reasons for his appointing the receiver. his order, which is cryptic, is this:'26. 4-1-64. parties file haziras. heard lawyers at length on the receiver matter. let sri.....
Judgment:

S. Barman, J.

1. Defendant No. 3 in a partition suit is the appellant from an order of the learned Subordinate Judge Cuttack, whereby he appointed an outsider as receiver in respect of the suit agricultural lands.

2. In May, 1963, the plaintiffs filed the suit for a decree for partition of their respective shares. The total area of the suit lands is said to be 5.656 acres. The defendants are said to be members of a joint Hindu family. The 11 plaintiffs are each purchaser for a specific portion of property from different members of the defdts' family. The total acquisition of the plaintiffs by purchase is said to be 3 acres. On the plaintiffs' application for receiver the learned Subordinate Judge appointed one Sri Dibakar Jena of Souri Gram Punchayet as receiver. Hence this Misc. appeal filed by defdt No. 3.

3. The learned Subordinate Judge did not give any reasons for his appointing the receiver. His order, which is cryptic, is this:

'26. 4-1-64. Parties file haziras. Heard lawyers at length on the Receiver matter. Let Sri Dibakar Jena of Souri Gram Puchayet be appointed as a receiver in respect of the agricultural lands till the disposal of the suit.

Let a copy of order be communicated to him. Receiver is to furnish accounts in the first week of March every year. Petitioner to supply a list of agricultural lands. Misc. case is allowed on contest with no cost.'

In my opinion, on the facts as pleaded by the plaintiffs there is no prima facie case for appointment of a receiver. The plaintiff's case pleaded in paragraph 15 of the plaint is that even though the plaintiffs and the defendants are in possession of specific lands according to their convenience more or less to the extent of the land to which they are entitled, there has not been any partition by metes and bounds of the lands covered by the disputed khata between the plaintiffs and the defendants according to the extent of lands to which they are entitled. So admittedly the defendants are in possession of their respective shares. Therefore by appointing a receiver that defendants who are in possession will necessarily be dispossessed.

4. One of the grounds for appointment of Receiver as stated in the petition is that in the meantime a proceeding under Section 144 Cr. P. C. has been initiated by the plaintiffs with respect to the suit lands, and further that the harvest time of the paddy crops cannot be made without appointment of receiver. The plaintiffs point is that there is thus a scramble for possession and the defendants are about to oust the plaintiffs. In my opinion this is no ground for the Civil Court to interfere with the possession of the parties by appointment of a receiver. The Criminal Court in Section 144 proceedings is competent to deal with it. It is open to the parties to seek appropriate remedies in the Criminal Court.

5. The appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril. Therefore, this exceedingly delicate and responsible duty has to be discharged by the Court with the utmost caution. The principles to be followed for appointment of receiver as laid down are these; Not only must the plaintiff show a case of adverse and conflicting claim to property, but he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. An order appointing a receiver will not be made where it has the effect of depriving a defendant of a de facto possession since that might cause irreparable wrong. The high prerogative act of taking property out of the hands of one and putting it in pound under the order of the Judge ought not to be taken except to prevent manifest wrong imminently impending.

Hence the Court should not appoint a receiver of property in the possession of the defendant who claim it by legal title, unless the plaintiff can show prima facie that he has a strong case and good title to the property. The Court must consider whether special interference with the possession of defendant is required, there being well founded fear that the property in question will be disputed or other irreparable mischief may be done unless the court gives protection. The mere circumstance that the appointment of a receiver will do no harm to anyone is no ground for appointing a receiver.

6. In the present case, I find no sufficient ground, on the materials placed before me, for interference with the possession of the parties by appointment of a third party receiver as ordered by the learned Subordinate Judge.

7. In this view of the case, the order of the learned Subordinate Judge is set aside. The appeal is accordingly allowed. Cost will abide the result of the suit.


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