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ichhabati Mohanty and anr. Vs. Bishnu Charan Paital and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 140 and 811 of 1982
Judge
Reported inAIR1983Ori59
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1
Appellantichhabati Mohanty and anr.
RespondentBishnu Charan Paital and ors.
Appellant AdvocateR. Ch. Mohanty and ;R.K. Mohanty, Advs.
Respondent AdvocateB.H. Mohanty, ;J.K. Bastia, ;S.C. Mohanty and ;L. Parida, Advs.
Cases ReferredP. Lakshmi Reddy v. L. Lakshmi Reddy
Excerpt:
.....3 to 6 having been held to be in possession of the land in question, their possession must be that of trespassers which is good against the world except the true owners defendants 1 and 2. that being so, the prayer for injunction against the true owners cannot validly be granted. the order by which the receiver was appointed clearly indicated that the appointment was conterminous with the suit. i make no order for costs as the confusion which has led to the filing of these revisions is the outcome of negligence on the pan of the parties and failure on the part of the court to look info the matter in a proper way......facts, i feel it just and convenient that the plaintiff be appointed as receiver in respect of the suit property till disposal of the suit. he is to render accounts regularly to the court.'the suit was disposed of by judgment and decree dated 29-4-1978 and 4-5-1978 respectively. the trial court held that the earlier sale deed of the defendants 1 and 2 was a genuine one and rajalaxmi's title to the disputed property had been duly conveyed to the defendants. therefore, no title was conveyed by the subsequent sale deed in favour of the plaintiff. the trial court, however, found that the suit land was in possession of the plaintiff and the pro forma defendants 3 to 6. having found so, the court further observed:--'the plaintiff and pro forma defendants 3 to 6 having been held to be in.....
Judgment:
ORDER

R.N. Misra, C.J.

1. From one Rajalaxmi, the admitted owner, the plaintiff-opposite party No. 1 and the defendants 1 and 2 purchased the same item of property by two successive sale deeds. Purchase by the defendants was dated 10-2-1976 and that by the plaintiff was dated 14-2-1977. The opposite party No. 1 instituted Title Suit No. 81 of 1977 on 23-6-1977 against the petitioners as defendants praying for permanent injunction. In that suit, the plaintiff was appointed as receiver on 22-12-1977. The trial court directed:--

'Considering all these facts, I feel it just and convenient that the plaintiff be appointed as receiver in respect of the suit property till disposal of the suit. He is to render accounts regularly to the court.'

The suit was disposed of by judgment and decree dated 29-4-1978 and 4-5-1978 respectively. The trial court held that the earlier sale deed of the defendants 1 and 2 was a genuine one and Rajalaxmi's title to the disputed property had been duly conveyed to the defendants. Therefore, no title was conveyed by the subsequent sale deed in favour of the plaintiff. The trial court, however, found that the suit land was in possession of the plaintiff and the pro forma defendants 3 to 6. Having found so, the court further observed:--

'The plaintiff and pro forma defendants 3 to 6 having been held to be in possession of the land in question, their possession must be that of trespassers which is good against the world except the true owners defendants 1 and 2. That being so, the prayer for injunction against the true owners cannot validly be granted. As such, the plaintiff is not entitled to the reliefs prayed for.'

The plaintiff carried a Title Appeal, being Title Appeal No. 58 of 1978, against the aforesaid judgment and decree and the same was dismissed on 23-1-1980. On 8-9-1980, the defendants 1 and 2 filed a petition in the suit to discharge the plaintiff-receiver, direct him to render accounts and deliver the mesne profits. On 1-7-1981 the plaintiff and the other pro forma defendants filed an objection to the petition and contended:--

'That by order dated 22-12-1977, the plaintiff was appointed receiver of the suit properties till disposal of the suit. The suit was disposed of on 29-4-1978. Therefore, with the disposal of the suit, the order has spent its force. Thus, after 29-4-1978 the plaintiff is not the receiver and is not liable to render any accounts.'

On 18-11-1981, the trial court rejected the petition of the defendants dated 8-9-1980. This civil revision is directed against that order and the defendants 1 and 2 are the petitioners. The plaintiff is the opposite party No. 1 and the pro forma defendants are the opposite parties 2 to 5.

It may be pointed out that on 4-11-1980 the defendant No. 1 filed a suit (Title Suit No. 123 of 1980) to restrain the plaintiff and the pro forma defendants of the earlier suit from interfering with his possession. On 1-5-1981, the defendants filed their written statement and opposed the prayer for injunction by contending:--

'Moreover, in the earlier suit, defendant No. 1 was appointed as receiver of the suit property and is still in possession in the capacity of receiver. He has not yet been discharged or dispossessed.'

Defendants 1 and 2 filed an application in their suit (Title Suit No. 123/80) for staying further proceedings of the suit till disposal of Civil Revision No. 140/82. That was rejected on 20-8-1982. Civil Revision No. 811 of 1982 has been filed against the refusal of the learned Munsif to stay further proceedings in the suit.

Both these revision petitions have been heard together and are being disposed of by this common order.

2. There is no dispute that in the order appointing Bishnu Charan Paital, the present opposite party No. 1, as receiver in Title Suit No. 81/77, the court had directed that he must render accounts. The order by which the receiver was appointed clearly indicated that the appointment was conterminous with the suit. As has been pointed out by the Supreme Court in the case of Hiralal Patni v. Loonkaran Sethiya, AIR 1962 SC 21, if a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in the action. The stand taken by the plaintiff and the pro forma defendants in their written statement in Title Suit No. 123 of 1980 that the defendant No. 1 of that suit who was the plaintiff in the earlier suit was continuing in possession as receiver has, therefore, no force in law.

Though in law the appointment as receiver could not continue beyond the date of the judgment in the suit, the receiver had maintained that he was continuing in possession qua receiver even till 1-5-1981 and did not claim any independent right in himself. In opposition to the prayer for rendition of accounts, the receiver, however, took an inconsistent stand and pleaded that his accountability, if any, had terminated with the disposal of the suit. In Title Suit No. 81/77, the plaintiff-receiver lost and title was found in the defendants 1 and 2. The possession of the plaintiff and the pro forma defendants was found to be that of trespassers. When the plaintiff Bishnu Charan was appointed as receiver, the pro forma defendants had no more possession and it must be assumed that those trespassers were kept away from the property and possession remained with Bishnu Charan (receiver): only.

The receiver had no independent title to the property and when he was appointed as receiver, it must be assumed that the court took over possession of the property and made it over to him qua receiver. The receiver held the property for the ultimate rightful owner. Therefore, in the written statement and the objection filed in the subsequent suit, the receiver had not taken the stand of claiming an independent right to possession and had maintained that he as receiver was in possession. It has been held by a Division Bench of the Madras High Court in the case of Thota Seshayya v. Madabhushi Vedanta Narasimhacharyulu, AIR 1955 Mad 252 (at p. 257):--

'Their appointment as receivers on 27-10-1948 did in our opinion, deprive them of possession of these lands by transferring possession from them as tenants to them as receivers of court. The fact that as receivers they were not made to hand over possession to themselves (a rather meaningless procedure) will be of no avail to them. The passage in Kerr on the Law and Practice as to Receivers at page 155, relied on by the appellants will not help them. The learned author observes :

'The appointment of a receiver does not of itself effect a change in the possession of land, nor does a receiver of rents and profits of land take possession unless the order directs him to do so.'

Obviously, the learned author is referring to the case of a third party receiver and not of the party himself being made a receiver, as in his case, when there will be no question of directing him to take possession from himself. Nor will the fact, that these appellants, who were appointed as receivers of the property under Order 40, Rule 1. C. P. C. at the instance of the plaintiffs with their consent, and not merely as receivers of the 'mukthas', were not directed to do anything more than put the 'mukthas' into court, make them receivers who need not take possession. A receiver may be asked to do various things by a court. There may be cases, where the receiver does every conceivable thing, and there may be cases where he does only a very few things. But, in every case, where he is appointed as general receiver under Order 40, Rule 1, fee is a receiver and officer of court in respect of the property and when possession is passed to him either physically, or legally, by operation of law, as where the party himself is made receiver, it is obvious that the possession is no longer with the original party. In other words, all these tenants ceased to have possession of the lands in dispute in these appeals, 'as tenants', on 27-10-1348, and so Section 8(5) will apply in full.

xx xx xx xx.'

The principle indicated in the aforesaidcase, to my mind, has full applicationto the situation here. The receiverBishnu Charan, who was a trespasser inpossession, lost his possession and became an officer of the court and heldthe property subject to directions of thecourt on behalf of the real owner. Aspointed out earlier, that has been hisstand in the subsequent litigation.

3. Mr. B. H. Mohanty for the receiver-opposite party placed reliance on some observations of the Supreme Court in the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314. I do not think the observations in Lakshmi Reddy's case support the contention of the counsel for the receiver that unless there be a decree for recovery of possession, the receiver cannot be asked to deliver possession. The receiver, being an officer of the court without any other claim personally for him, cannot be heard to take a different stand and he must be amenable to directions of the court. Once the learned trials Judge found that the defendants 1 and 2 were the real owners, the possession of the receiver enured to their benefit and the trial count was, therefore, within its jurisdiction to require the receiver to deliver possession.

4. There is some confusion in the application made by the defendants and taking advantage of that confused claim, the receiver has taken the stand that what was claimed was only mesne profits. The most equitable way of dealing with the matter should be to require the receiver to deliver possession of the property to the true owner and ask him to comply with the court's initial direction while appointing him receiver that he should render accounts for the property. No party is entitled to take advantage of court's orders if the benefits are not really due to him and it is the obligation of every court to ensure that the rightful owner is given his legitimate due. If that be the true approach, was the obligation of the learned trial Judge to ensure that the receiver delivered possession and the defendants were put into, possession. Since they were the true owners as found by the trial court, accounts should have been taken of the mesne profits and as true owners, mesne profits should have been given to them.

The receives has blown hot and cold at different times according to his convenience. The learned trial Judge should have seen through the game and not permitted inconsistent stands to be taken. An officer of the court is not entitled to play with the court and take advantage of small mistakes here and there in the proceedings and stand in the way of the court doing justice to parties.

5. I would accordingly allow Civil Revision No. 140 of 1982 and direct that the learned trial Judge shall take steps to oust the receiver from possession of the property, put the defendants 1 and 2 of the earlier suit in possession and take accounts from the receiver and the mesne profits be collected and make over to the defendants 1 and 2 who have been adjudged as true owners.

6. Now that Civil Revision No. 140 of 1982 has been disposed of the connected Civil Revision (C. R. No. 811/82), which arose out of refusal by the trial court to stay further proceedings in the suit until disposal of the Civil Revision, must stand dismissed,

7. The records be returned to the trial court quickly. I make no order for costs as the confusion which has led to the filing of these revisions is the outcome of negligence on the pan of the parties and failure on the part of the court to look info the matter in a proper way.


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