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Karri Ramaya Naidu Vs. Karri Chilakayya Naidu - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 61 of 1962
Judge
Reported inAIR1963Ori142
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1; Orissa Tenants Protection Act, 1948 - Sections 5
AppellantKarri Ramaya Naidu
RespondentKarri Chilakayya Naidu
Appellant AdvocateK.S.R. Murthy, Adv.
Respondent AdvocateR.C. Misra, Adv.
DispositionAppeal dismissed
Cases ReferredHiralal Patni v. Loonkaram Sethiya
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........them from interfering with the management and possession of the plaintiff in respect of the suit lands and obtained a decree. against the said decision, the appellant unsuccessfully carried an appeal t. a. no. 10 of 1959 and thereafter he also filed a second appeal (s. a. no. 120 of 1961) which was not admitted. during the pendency of the suit, a receiver was appointed who for cultivation for three years from 1957-1959 settled the suit lands with the plaintiff-respondent. in the year 1960, the defendant-appellant being the highest bidder, the suit lands were given to him for that year for cultivation. the aforesaid title appeal no. 10 of 1959 was disposed of on 11-5-1961 and the appellate court directed the receiver to be discharged and the suit lands not to be leased out any.....
Judgment:

R.K. Das, J.

1. This is an appeal by the judgment-debtor arising out of a proceeding under Sections 47 and 151 of the Code of Civil Procedure.

2. The respondent filed a suit [Title Suit No. 27 of 1957) against the appellant and some others praying for permanent injunction against them from interfering with the management and possession of the plaintiff in respect of the suit lands and obtained a decree. Against the said decision, the appellant unsuccessfully carried an appeal T. A. No. 10 of 1959 and thereafter he also filed a second appeal (S. A. No. 120 of 1961) which was not admitted. During the pendency of the suit, a receiver was appointed who for cultivation for three years from 1957-1959 settled the suit lands with the plaintiff-respondent. In the year 1960, the defendant-appellant being the highest bidder, the suit lands were given to him for that year for cultivation. The aforesaid Title Appeal No. 10 of 1959 was disposed of on 11-5-1961 and the Appellate Court directed the receiver to be discharged and the suit lands not to be leased out any further.

3. Thereafter the respondent levied execution of the decree for permanent injunction and on receipt of the notice of the said execution case, the judgment-debtor-appellant filed a petition under Sections 47 and 151 of the Code of Civil Procedure contending inter alia that he cannot be evicted from the suit lands as his possession was that of a tenant under the Orissa Tenants' Protection Act. This contention of his was negatived by the Executing Court in M.J C. No. 58 of 1961 against which he preferred an appeal (Misc. Appeal No. 15 of 1962) with the same result and the present appeal has been filed challenging the said order of the Appellate Court.

4. The only point urged by Mr. Moorty learned counsel for the appellant, was that the possession of the appellant being that of a tenant under the O. T. R. Act, is protected under Section 5 thereof, and as such he is not evictable from the suit-lands. It cannot be disputed that the defendant being a party to the aforesaid Title Suit No. 27 of 1957 and Title Appeal No. 10 of 1959 was bound by the term of the decree passed therein. No doubt, the appellant being the highest bidder for the year 1960 was given the land for cultivation only for that year, but in view of the clear order of the Appellate Court dated 11-5-1961 discharging the receiver, he had no authority to further lease out the land to any party. According to the plaintiff he issued a registered notice dated 26-4-1961 to the receiver intimating him the fact of his continuing in possession of the suit lands. The notice, however, is of no consequence as mere assertion of continuing in possession could not give him a right of possession. Moreover, as stated above after the order of the Appellate Court dated 11-5-1961, the receiver had no authority to deal in any manner with the suit lands. The receiver is only an officer of the Court and holds the property only during the continuance of the litigation between the parties. The proprietary right all along remained with the true owner to be ultimately found by the Court and until a case reaches its finality, neither party can claim that he is the true owner, nor can it be said that the receiver was holding the property on behalf of any particular party. The title of the true owner cannot, in any way, be affected, either by the appointment of the receiver or by the termination of his office.

5. Mr. Moorty, however, contended that the legal position of a receiver is the same as that of a landlord and as such, the receiver having settled the land with the appellant, the latter was entitled to the protection under Section 5 of the O. T. R. Act. In support of his contention, he relied upon a decision of the Patna High Court reported in Mahabir Das v. Udit Narain Verma, AIR 1938 Pat 613. That case is clearly distinguishable on facts and is of no assistance to Mr. Moorty. That was not a case which dealt with a situation where the receiver was in possession on behalf of the contending parties who were asserting their rights to remain in possession and management of the property as here. In that case a receiver who was appointed in a suit between two contesting landlords made a settlement with a tenant in course of his management and it was held that such a settlement is binding on the person who was found to be the rightful owner. In the present case, however, the appellant himself was a party to the decree and as such was bound by the same.

6. Mr. Misra learned counsel for the respondent, on the other hand contended that the receiver appointed by the Court having no title or interest in the land itself, except to administer it during the continuance of any litigation, cannot be held to be a landlord within the meaning of the O. T. R. Act, nor the appellant a tenant so as to attract the provision of Section 5. In support of this contention he relied upon a decision reported in Jacob v. Subramonia Iyer, AIR 1960 Kerala 212. There the question for consideration was whether Section 4 of Kerala Stay of Eviction Proceedings Act, 1957, which provides protection from eviction from a holding, was applicable to arrangements entered into by a Court or by a receiver appointed by it. Their Lordships held that a Court or receiver taking possession of property in suit, does not thereby derive any title to it, much less any interest in it, not even a right of possession, except for administering or managing or preserving it for the benefit of the party rightfully entitied to it. It was further held that in administering the property, a Court cannot act directly but has perforce to function through the agency of others in this respect; unlike the Court, a receiver can if he so intends or if the circumstances warrant, act by himself, but in the generality of cases he may find it necessary or expedient not to do so, but only through others. Their Lordships further held:

'To us, it seems inconceivable that the legislature had intended, by enacting a provision like Section 4 of the Act, to interfere with and thereby paralyse the administration of the properties committed to the Court, unless there are very strong grounds to believe that this was intended. The reasons which might conceivably have induced the Legislature to curtail or suspend a landlord's right of eviction, do not appear to us to have any application to that of a Court or its officer who is in no sense a landlord, but who merely preserves the property for the benefit of the party who may be found entitled to it.'

The above observations of the learned Judges, are fully applicable to the facts of this case. Thus, it can safely be held that the protection envisaged under Section 5 of the O. T. R. Act is not available to the appellant in the present case.

7. Further, it cannot be disputed that it is open to the Court to direct the receiver to remove a party from possession of the property. In a case reported in Hiralal Patni v. Loonkaram Sethiya, AIR 1962 SC 21, their Lordships of the Supreme Court held that under 0. 40, Rule 1 of the Civil Procedure Code, the receiver is an officer or representative of the Court and he functions under its direction. The Court may, for the purpose of enabling the receiver to take possession and administer the property, by order remove any person from the possession or custody of the property. Further when a person is a party to the suit, the Court can direct the receiver to remove him from the possession of the property even if the plaintiff has not a present right to remove him. In view of this legal position it is not open to the appellant to contend that he is a tenant under the Receiver within the meaning of Section 5 of the O. T. R. Act and as such is not liable to be evicted even by the Court.

8. In the result, the contention on behalf of theappellant having failed, the appeal is dismissed withcosts.


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