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Parvathy Rudrani Vs. Lekshmi Yesoda and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1459 of 1979-G
Judge
Reported inAIR1981Ker131
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 40, Rule 1
AppellantParvathy Rudrani
RespondentLekshmi Yesoda and ors.
Appellant Advocate P. Sukumaran Nayar, Adv.
Respondent Advocate P. Krishnamoorthy and; K. Vijayan, Advs.
DispositionPetition dismissed
Cases ReferredEverest Coal Co. v. State of Bihar
Excerpt:
.....- section 151 order 40 rule 1 of code of civil procedure, 1908 - petition for leave to institute suit against receiver appointed in suit dismissed - court directed receiver to surrender possession of property - grant of leave rule while refusal exception - leave can be refused when action meritless, vexatious, frivolous or otherwise vitiated by any sinister factor - receiver not necessary party to impugned suit - revision petition dismissed. - - 2. the learned counsel for the petitioner forcibly contended that the court below had failed to exercise the iuris-diction vested in it and had committed a jurisdictional error in not granting leave asked for. 3. before discussing the question of law bearing on this point it is necessary to set out the facts of the case clearly. 6. the..........which has been extracted above makes it clear that the petitioner herself had agreed to the appointment of the self-same receiver a second time. this is an additional reason that persuades me to hold that the request for permission to sue the receiver does not come with any grace from the petitioner. the receiver is not trying to interfere or disturb a third party's possession in any manner. what the petitioner wants in the proposed suit is only to get her title and possession declared. receiver is not a necessary party in such a suit. 9. the civil revision petition fails and is dismissed. i make it clear that the dismissal of this civil revision petition will not stand in the way of the petitioner from filing a suit against others. the parties are directed to bear their costs.
Judgment:
ORDER

V. Khalid, J.

1. The 4th defendant in O. S. No. 44 of 1978 on the file of the Munsiff, Punalur is the petitioner. This revision is against an order passed by the court below dismissing a petition filed by the petitioner for leave to institute a suit against the receiver appointed in the suit. The suit was for a permanent injunction. An application was filed for a temporary injunction. The trial court originally granted an ex parte temporary injunction. At this stage the petitioner, who was not originally arrayed as a defendant, got herself impleaded and opposed the injunction application. The trial court after hearing the parties, modified the injunction order and appointed instead a receiver to the property. The petitioner thereupon filed C. M. A. 4 of 1978 before the Sub Court, Kottarakkara. This was allowed by the Sub Court with a direction to the receiver to surrender possession of the property to the person from whom he had taken possession. After this, the petitioner filed I. A. 1259 of 1978 seeking permission from the court in file a suit against the receiver also. Copy of the plaint intended to be presented before the Sub Court was also produced. The court below dismissed the application holding that her right could be decided in the present suit itself and that the receiver was not a necessary party in the suit proposed to be filed by the petitioner. It is against this order that the present revision is filed.

2. The learned counsel for the petitioner forcibly contended that the court below had failed to exercise the iuris-diction vested in it and had committed a jurisdictional error in not granting leave asked for. According to him, in no case can a court refuse such leave when asked for, though later he qualified it by saying that to grant leave was the rule and refusal only an exception.

3. Before discussing the question of law bearing on this point it is necessary to set out the facts of the case clearly. The present petitioner was not a party to the injunction suit. She got herself impleaded and invited an order on her opposition in the appointment of a receiver. She challenged this order by riling an appeal, the order in which also was adverse to her. The appellate court has directed the court below to direct the receiver to surrender the property to the person from whom the receiver took possession. There is some difficulty in this case. The receiver was not definite as to who was in possession at the time he took possession. If this fact was not in dispute, the direction of the appellate court could have been easily worked out by directing the receiver to hand over the property to the person from whom he obtained possession.

4. One other development in the suit also has to be taken note of. Subsequent to the dismissal of C. M. A. No. 4 of 1978, the court below appears to have passed an order by consent of all parties appointing the self-same receiver to the property. I do not have a copy of the said order in the records. A typed copy of the order was read over to me. I quote below the relevant portion of the order which was placed in my hands:

'Under the circumstances the parties to the suit have agreed, to appoint the same person, that is. Advocate Shri. Haridas as receiver for the plaint schedule property. Accordingly Shri Haridas is appointed as receiver of the property, till the disposal of the suit. The right to cultivate the paddy land and the right to collect usufructs from the dry land have to be auctioned by the receiver. Since all the parties to the suit are in full agreement of appointing receiver the question, whether it is iust and convenient to appoint a receiver for the plaint property need not be considered here. The parties are relegated to position before the appointment of the receiver, as per order of the Appellate Court. But the receiver could not surrender the property for the reasons mentioned above. So the receiver will continue in possession of plaint schedule property and hewill arrange for immediate cultivation of the paddy land.

XX XX XX XX The appointment of the receiver asper this order will be treated as freshappointment.'

The petitioner's counsel was not in aposition either to affirm or to deny theexistence of such an order.

5. The question for consideration is as to whether a court, before whom an application for leave to file a suit against a receiver appointed by it is made, has necessarily to allow it or whether such an application could be considered on merits and orders passed either granting or refusing the leave sought. There is no statutory provision under which such an application can be made, nor is there a statutory mandate for courts to grant the leave asked for in all cases. The court has always an inherent jurisdiction to grant or refuse leave. The rule that a party who wants to sue a receiver should take the permission of the court that appointed him has assumed the status of a rule of equity, because courts always want to uphold its dignity and to safeguard the possession assumed by it while appointing a receiver. Any interference or disturbance of its possession by an outsider will be an invasion of the right which it assumed to itself. It is to safeguard this right that courts insist that permission should be asked for when its representative i. e. the receiver is sought to be proceeded against in any action. The institution of such suits is in the eye of the law a contempt of the authority of the court and therefore the party contemplating such a suit is required to take the leave of the Court so as to absolve himself from that charge. The grant of such leave is made not in exercise of any power conferred by statute but in exercise of the inherent power, which every Court possesses to prevent abuse of its authority.

6. The learned counsel for the petitioner would submit that it is only in very exceptional cases that the prayer for leave could be refused and the case on hand cannot be said to be such an exceptional one. He referred me to the rulings reported in Amulya Chandra v. Kashi Nath (AIR 1927 Pat 297), Lakshmi Narayan v. Sachindra Natha (AIR 1937 Cal 671) and Banwarilal Agarwalla v. Sudhamoy Basu (ILR (1955) 2 Cal 55) to illustrate instances where such leavewas readily granted. In Amulya Chandra v. Kashi Nath (AIR 1927 Pat 297) I shall only read the first head note:

'Where a receiver appointed in an action attempts to take possession of property in possession of a third party and the third party sues for injunction, his going to the Court appointing Receiver and to ask to be examined pro inter essa suo is a remedy open to him, but it is not one by which he can obtain 'equally efficacious relief' within Section 56.'

In Lakshmi Narayan v. Sachindra Nath (AIR 1937 Cal 671) also I shall read only the first head note:

'On the application for permission to make the receiver a party to the suit, no doubt it is open to the Court from whom permission is asked for to consider the question on its merits. But it must be remembered that it is not the obiect of appointing a receiver to keep a third party out of possession who may be entitled to possession, and the Court will readily give leave to sue its receiver if satisfied that there is a case to be tried, so that the claim of the third party may be tried in the presence of the receiver. In such a case not to make the receiver a party to the suit may lead to conflict of jurisdiction. The test in such a case is whether the property in the hands of the receiver is going to be affected or not.' I have refrained from discussing the facts of the case in detail for the reason that the principle governing this question has now been laid down by the Supreme Court in Everest Coal Co. v. State of Bihar (AIR 1977 SC 2304). Krishna Iyer, J. speaking for the bench has set out the guidelines in cases where applications for leave to sue a receiver are made. The question posed by the learned Judge in that case is as follows: 'Can the court appointing a receiver to take charge of properties, grant leave to continue a suit against him when a third party wants to prosecute such action initiated without such a permission? If so, what are the guidelines for grant of such leave.'

The guideline is set out in paragraph 4 of the judgment as follows:

'4. The laconic affirmance by the High Court of the trial Court's order has necessitated the appellant's challenge of its propriety and legality. Instead of leaving the matter 'astrologically' vague and futuristically fluid, we shall state the legal position and settle the proposition governing this and similar situations. When a court puts a Receiver in possession of property, the property comes under court custody, the Receiver being merely an officer or agent of the court. Any obstruction or interference with the court's possession sounds in contempt of that court. Any legal action in respect of that property is in a sense such an interference and invites the contempt penalty of likely invalidation of the suit or other proceedings. But, if either before starting the action or during its continuance, the party takes the leave of the court, the sin is absolved and the proceeding may continue to a conclusion on the merits. In the ordinary course, no court is so prestige-conscious that it will stand in the way of a legitimate legal proceeding for redressal or relief against its receiver unless the action is totally meritless, frivolous or vexatious or otherwise vitiated by any sinister factor. Grant of leave is the rule, refusal the exception. After all, the court is not, in the usual run of cases affected by a litigation which settles the rights of parties and the Receiver represents neither party, being an officer of the court. For this reason, ordinarily the court accords permission to sue, or to continue. The jurisdiction to grant leave is undoubted and inherent, but not based on black-letter law in the sense of enacted law. Any litigative disturbance of the court's possession without its permission amounts to contempt of its authority; and the wages of contempt of court in this jurisdiction may well be voidability of the whole proceeding. Equally clearly, prior permission of the court appointing the Receiver is not a condition precedent to the enforcement of the cause of action. Nor is it so grave a vice that later leave sought and got before the decree has been passed will not purge it. If, before the suit terminates, the relevant court is moved and permission to sue or to prosecute further is granted, the requirement of law is fulfilled. Of course, failure to secure such leave till the end of the lis may prove fatal.

7. The law of the land thus laid down indicates that grant of leave is the rule while refusal is an exception.The learned Judge has indicated, with respect, that leave can be refused when an action is totally meritless, frivolous or vexatious or otherwise vitiated by any sinister factor, which means that the jurisdiction of the court before whom an application for leave is made is kept alive to consider the facts of each case and to find out whether leave asked for should be granted or not. The head-notes of the two cases extracted above would indicate that in those cases it was third parties who wanted to file cases against the receiver. In the Supreme Court case also from the question posed extracted above, it would appear that the learned Judge was considering the rights of third party's actions against the receiver. Even so it cannot be gainsaid that the principle laid down by the Supreme Court is of general application.

8. With this background I shall examine the facts of the case on hand. As already mentioned, the petitioner was not a party to the suit to start with. She got herself impleaded. She opposed the injunction application. It was in her presence that the order appointing the receiver was made. She took the matter in appeal and invited an order adverse to her. Suppose the suit proposed is not filed, is the party entitled to possession without any remedy. Certainly not. The trial court would have into the question of possession and restored the property to him or to her from whom possession was taken. The suit proposed to be filed is for declaration of title and declaration of possession. There is a prayer in the plaint for a mandatory injunction to direct the receiver who is shown as the 13th defendant in the plaint to hand over possession to the plaintiff, namely the petitioner herein. This is exactly what is directed by the appellate court in its order in the Civil Miscellaneous Appeal filed by the petitioner while dismissing it. The petitioner's case is that the receiver took possession of the property from her. She has only to prove it and the Court will readily direct the receiver to return her possession. From the materials on record I find that there is serious dispute about the status of the petitioner. The parties have joined issue about the fact whether the petitioner is wife of Nanu or not. As already indicated, in a case like this with its peculiar features a suit againstthe receiver is not a step to be countenanced. The present suit is in the Mun-siff's Court. The suit proposed to be filed is in the Sub-court for the identical property. It is not difficult to see a sinister design behind the suit. This is one of the factors to be taken into account, according to the Supreme Court, while considering grant of leave. What is more the subsequent order of appointment of the receiver which has been extracted above makes it clear that the petitioner herself had agreed to the appointment of the self-same receiver a second time. This is an additional reason that persuades me to hold that the request for permission to sue the receiver does not come with any grace from the petitioner. The receiver is not trying to interfere or disturb a third party's possession in any manner. What the petitioner wants in the proposed suit is only to get her title and possession declared. Receiver is not a necessary party in such a suit.

9. The Civil Revision Petition fails and is dismissed. I make it clear that the dismissal of this Civil Revision Petition will not stand in the way of the petitioner from filing a suit against others. The parties are directed to bear their costs.


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