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Al. St. an. Chidambaram Chettiar Vs. Al. Vr. P. Pethaperumal Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad163; (1937)1MLJ605
AppellantAl. St. an. Chidambaram Chettiar
RespondentAl. Vr. P. Pethaperumal Chettiar and ors.
Cases ReferredPalaniappa Chetty v. Subrahmanyia Chetty
Excerpt:
- .....reliefs against the first defendant in particular by way of an injunction and for an account. the suit was decreed. the right of all the members of the a.l. and v.r. families to the trusteeship, as also the validity of the 1907 agreement and scheme, were declared; the first defendant was restrained from interfering with the rights of the a.l. family and he was directed to account for his management. for this purpose a commissioner was appointed and this commissioner was also appointed receiver for the special purpose of at once realising all the debts due to the devasthanam from the members of the a.l. and v.r. families and from strangers except tenants.2. an appeal has been filed against the decree. it need only be observed with regard to the history of this dispute, subsequent to the.....
Judgment:

Cornish, J.

1. The appeal is against the order of the Subordinate Judge appointing a Receiver. The appellant was the twenty-first plaintiff in a suit brought by a group of persons of the A.L. family against a group of defendants representing the V.R. family for a declaration that both these families were entitled to the management and trusteeship of certain temple properties under a scheme framed by agreement between the families in 1907. The plaint prayed further reliefs against the first defendant in particular by way of an injunction and for an account. The suit was decreed. The right of all the members of the A.L. and V.R. families to the trusteeship, as also the validity of the 1907 agreement and scheme, were declared; the first defendant was restrained from interfering with the rights of the A.L. family and he was directed to account for his management. For this purpose a commissioner was appointed and this commissioner was also appointed receiver for the special purpose of at once realising all the debts due to the devasthanam from the members of the A.L. and V.R. families and from strangers except tenants.

2. An appeal has been filed against the decree. It need only be observed with regard to the history of this dispute, subsequent to the decree, that the family discord and consequent difficulty in the management of the devasthanam property have continued unabated. An application was subsequently made to the Sub-Judge by the eleventh defendant praying that first plaintiff be directed not to act by himself in the management and that if he did not agree the Receiver appointed specially should be appointed to generally manage the affairs of the devasthanam. This application was resisted by the first plaintiff. The Court dismissed the application upon the ground that the Court has no further jurisdiction that the decree being under appeal to the High Court, the High Court was the tribunal to which the power of appointing a Receiver belonged. Twelve months or so later a fresh application was made to the Subordinate Court for the appointment of a general Receiver, this time by the plaintiffs other than twenty-first plaintiff who objected to the application. The Sub-Judge on this occasion, differing from his predecessor, held that he had jurisdiction to appoint a general Receiver. Hence the present appeal.

3. The earned Counsel for the appellant has urged two objections to the validity of the order of the Sub-Judge. Firstly, he has contended that it was not competent to the Court to appoint a Receiver in a declaratory suit; and, secondly, that the decree having in part become final and an appeal being pending, the lower Court had no jurisdiction to appoint a general Receiver.

4. With regard to the first contention I think it cannot be maintained. There is, of course, no scope for the appointment of a Receiver unless there is some property for him to receive. But whenever there is property which is the subject of dispute between litigants, or which is affected by the litigation, a Receiver of it can be appointed by the Court if the Court thinks it just and convenient to make the appointment. In Veeraraghava Thathachariar v. Krishnaswami Thathachariar (1908) 20 M.L.J. 638 where the suit was for a declaration that a scheme was binding on the parties and alternatively for the settlement of a scheme, and for the appointment of a Receiver, it was held that the Court had power to appoint a Receiver 'the whole aim and object of the suit' it was said:

Is to regulate the collection and distribution of the property of the temple and even though there is no application for the removal of the Dharmakartha (in which case no doubt the Court would have power to appoint a Receiver) the subject is the same in both cases, namely, the property of the temple.

5. That was a suit governed by Section 503 of the former Procedure Code which limited the power of the Court to appoint a Receiver of property 'the subject of the suit '. The power of the Court under the new Code is certainly not less than it was under Section 503 of the old. The language of Order 40, Rule 1 of the present Code has purposely been more widely expressed. I feel no doubt that if there is property in dispute between the parties, and the Court thinks it expedient that the property should be protected for the benefit of the party ultimately entitled to it pending the suit, the Court can properly appoint a Receiver of it, even in a suit which prays for no other relief than a declaration of some particular right or title. This is in accordance with Vythilinga Pandarasannadhi v. The Board of Control, Sri Thiagarajaswami Devasthanam, Tiruvarur : AIR1932Mad193 and Amar Nath v. Mt. Tehal Kuar A.I.R. 1922 Lah. 444.

6. The second point taken for the appellant appears to me to have more substance in it. Order 40, r. 1 empowers the Court, where it appears just and convenient, by order to appoint a receiver of any property, whether before or after decree. 'The Court' is not necessarily the trial Court. The Court which makes the order for a Receiver after decree may be the Court which passed the decree, or it may be the Appellate Court which has become seized of the matter by reason of an appeal. The Court which passed the decree has, for example, the power conferred on it by Section 51 of the Code to appoint a Receiver for the execution of the decree. But that is because the Court which passed the decree still has seisin of the property in suit. But if execution has been stayed it certainly would not have this power.

7. I think that a Court's power to appoint a Receiver is limited to the case where the proceedings are still pending before it. Either the suit must be pending, and it will be pending after a preliminary decree but before final decree or the proceedings in execution of a final decree must be pending. In either event the Court in which the suit or proceedings are pending will have seisin of the suit or of the property subject to exemption; and this will be the basis of the Court's power to appoint a Receiver of it.

8. A decree may be partly preliminary and partly final. It was so in the present suit. But this is no reason why the principle which I have just stated should not apply. In the present instance an appeal is pending to the High Court against the decree in the plaintiff's suit, and the High Court while upholding the appointment of the special Receiver appointed in that suit, has stayed the passing of a final decree as regards that in which a preliminary decree only had been made by the first Court.

9. In these circumstances has the first Court any further jurisdiction to appoint a general Receiver of the property in suit? It seems to me that the question has been put beyond dispute by the Full Bench ruling in Chenna Reddi v. Pedda Obi Reddi (1909) 19 M.L.J. 388 : I.L.R. 32 Mad. 416. It was there said by Sir John Wallis:

Now after an appeal has been filed, the appellate Court is seised of the case and should no doubt be applied to rather than the Court of first instance unless the law expressly enjoins the contrary as was held in Pichuvaiyangar v. Seshaiyangar (1894) 5 M.L.J. 39 : I.L.R. 18 Mad. 214 but it is a very different thing to press this principle so far as to say that the act of a party in filing an appeal deprives the Court of first instance of power to dispose of an application which has been properly made to it in the exercise of its jurisdiction.

10. In the Full Bench case an application for review had been presented before an appeal had been preferred, and it was held that the subsequent filing of the appeal did not deprive the Court which gave judgment from entertaining the application to review its judgment. And in Palaniappa Chetty v. Subrahmanyia Chetty : AIR1921Mad568 it was held that upon the express language of Order 9, Rule 13 that the Court which passed an ex parte decree being the only Court to which application to set it aside could be made, the Court's power to dispose of such an application was not ousted by the filing of an appeal against it.

11. I think that when a decree has become final, and an appeal is pending, there is no room for any such exceptions to the general rule stated by the Full Bench in respect of the power to appoint a Receiver of the property in the suit. The appellate Court has become seised of the whole case. The Subordinate Court had then no further control over it. The High Court was the Court which then had the power to appoint a Receiver under Order 40, Rule 1. The Sub-Judge's order appointing a Receiver was therefore beyond his powers and it must be set aside. The appeal is allowed with costs.


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