1. This appeal is directed against the order of the learned Subordinate Judge, Coimbatore, appointing the plaintiff-petitioner as a receiver to take charge and manage the suit charities, their properties and funds from the first defendant and to manage the same during the pendency of the suit. It is common ground that the charities constitute a private trust and the founding deed provided for management by the senior most member of the family by turns for life. The plaintiff is the paternal uncle of the first defendant. According to the first defendant the plaintiff having relinquished his right to turn of management, he was entitled to continue to function as a trustee. Since this was denied by the plaintiff, he brought the instant suit for a declaration that he was entitled to his turn of management and for recovery of possession of the office of trustee, the trust properties, and for rendition of accounts.
The plaint was presented on 30-9-1958 and the trial was taken up on 1-10-1960. On 30-6-1961, an application was filed by the plaintiff for appointment of a receiver but for some reason this was not disposed of until the suit itself was tried. The trial ended in February 1962 and by a judgment delivered on 16-5-1962, the suit was decreed in terms of the plaint prayers. On the same day the Subordinate Judge took up the application for appointment of a receiver and ordered the same. A preliminary objection was taken on behalf of the first defendant that since the suit had ended in a decree, the Court below no longer had jurisdiction to appoint a receiver. But the Subordinated Judge was of the view that in view of the fact that pursuant to the direction in the decree accounts had to be taken, the suit should be deemed to be pending. He was also of the view that having regard to the conduct of the first defendant in denying the plaintiff's right to the managing trusteeship and his acts of commission and misfeasance, it was just and convenient to appoint a receiver.
2. Sri K. Rajah Iyer, learned counsel for the appellant first defendant contends (I) that as the suit itself ended in a decree the receiver order made by the Subordinate Judge was without jurisdiction and (2) that in any case inasmuch as there was no impediment to execution of the decree for possession of the office as well as the trust properties and as otherwise no stay of execution could be asked for by the first defendant:, it was. not in the circumstances proper for the Court to appoint a receiver.
On the first point, the counsel's submission is that a receiver could be appointed either pending a suit or, after he suit has ended, in execution and that since this suit ended in a decree fop possession of the office as well as the trust properties, the receiver appointed by the Subordinate Judge otherwise than in execution is in excess of his powers. It seems to me that the fallacy in this argument is the assumption that the suit has. come to an end. It is true that the plaint had been decreed in terms of its prayers. But the fact remains that rendition of accounts directed by the decree has still to take place and a final decree in respect of it is yet to follow. In view of this, it cannot be said that the suit has ended. for a suit to end all the issues arising therein should have been adjudicated and a final decree made in respect thereof. Disposal of the suit on one or some of the issues or one or some of the prayers in the plaint or passing of a preliminary decree does not ipso facto bring to an end the suit itself. If, therefore, the suit is regarded as pending as indeed it should be, I fail to see any substance in the objection to the jurisdiction of the Sub-ordinate Judge to make the order. Order XL Rule I. C. P. C. comprehends, in my opinion, both cases falling within the ambit of Section 94(d) as well. as Section 51(d) read with O. XXI, Rule 11 of the Code. The Subordinate Judge was. therefore, competent to make the order on the basis that the suit was' pending.
3. Even on the assumption that the suit had ended, it is difficult to uphold the contention that under Order XI, Rule 1, the Subordinate Judge had , no power, except in execution, to appoint a receiver. That rule expressly states that where it appears to the Court to be just and convenient it may by order appoint a receiver of any property 'whether before or after decree'. Shunmugam v. Moidin. ILR 8 Mad 229 which was decided before the insertion in O. XL, Rule 1 of the words 'whether before or after decree' held that it was competent for the Court to appoint a receiver even after a decree had been passed, otherwise than in execution. It was pointed out in that case that there was nothing in Section 503 of the Code as it then stood which restricted the Court's power to appoint a receiver after a suit had come to an end. It was evidently in view of this decision, to make the matter beyond doubt, the words 'whether before or after decree' were inserted. Where appointment of a receiver would be inconsistent with the decree passed in the suit, it would, of course, be a different matter and in such a case, the Court for that reason will obviously not appoint a receiver. It follows that the point of jurisdiction raised on behalf of the appellant should be rejected.
4. Sri Rajah Iyer next contends that the learned Subordinate Judge did not act properly in appointing a receiver, because the plaintiff could certainly have executed the decree in his favour and recovered possession of the office as well as the trust properties. I earned counsel urges that where there is no impediment to execution, the Court should be slow and can seldom make an order appointing a receiver which would practically have the effect of depriving the first defendant of his possession not through the proper means, namely, execution.
In support, reliance is placed on Hemendranath Roy v. Prakashchandra Ghosh : AIR1932Cal189 , in which it was obsered :
'Much more care should be taken to ascertain whether the order should be made in a case, where the decree-holder, having the ordinary remedy of execution available, to him, applies fox the appointment of a receiver to pay himself out in respect of his decree, keeping the property fixed upon the judgment-debtor with all his liabilities intact in respect thereof and yet depriving him of its enjoyment and profits. Such an order, when made almost as a matter of course and far from satisfying the requirements of the phrase 'just and convenient' occurring in Order XL, Rule 1 of the Code, which must necessarily mean just and convenient in view of the equities in favour of both the parties, is exactly the reverse so far as the judgment-debtors are concerned.'
I think, with great respect, no exception can possibly be taken to the proposition as such in the abstract but I am unable to regard it as an inflexible rule that wherever there is no impediment to execution and that remedy is available to a plaintiff, he can never ask for a receiver. Circumstances and facts may well exist which may properly lead the Court to a conclusion that it will be just and convenient to appoint a receiver notwithstanding the fact that the plaintiff had a remedy by way of execution. ' The application of the proposition laid down in the Calcutta case will depend upon the facts and circumstances in each case. That case was decided on totally different facts.
The facts in this case are peculiar. The office as well as the trust properties here go together. No one who is not a trustee by his turn can get into possession of the trust properties and deal with them. The first defendant has been declared by the Subordinate Judge to be not the turn trustee. He has held that the plaintiff is the trustee. The effect of this is that the first defendant not being a trustee cannot deal with the trust properties for any purpose. In such a situation, it seems to ! me the interest of the trust should also enter into the consideration as to whether it is just and convenient to appoint a receiver. Even though the plaintiff could have applied for execution, possibly that remedy might prove to be not expeditious and detrimental to the interest of the trust.
Apart from that, in order to enable the affairs of the trust to be carried on at once, it will be necessary to make a proper interim arrangement and obviously such an arrangement can only be in the form of a receiver pending final adjudication of the dispute over the right to turn trusteeship. What particularly weighs with me is the fact that the first defendant has at the moment no capacity, as the judgment of the Subordinate Judge stands now, to act as a trustee and therefore to deal with the trust properties. The phrase 'just and convenient', in my opinion, has reference not only to the convenience of the parties but. also in the particular circumstances to the very subject matter of the suit.. I also fail to see any point in Mr. Rajah Iyer's contention that because of the receiver order the appellant was prevented from applying for suspension of the operation of the declaratory part of the trial Court's decree. [ think, therefore, that the learned Subordinate Judge was not in error in exercising his discretion in appointing a receiver,
5. It may be that in justification of appointing the plaintiff as receiver, the Subordinate Judge took into account, certain considerations which were germane to the merits of the suit, as for instance. the past conduct and the like. But, though it does not appear from the order of the Subordinate Judge, apparently what impressed him in making the order was the consideration which I have adverted to, namely, that the first defendant was no longer entitled to act as a trustee and deal with the properties.
6. One other point urged by Sri Rajah Iyer is that, whatever may be the position of strangers, where a family trust is involved and what is my question is merely the right to turn, different considerations must apply. He says that it is not as if the defendant is not a trustee Be that as it may. The point is, as held by the Subordinate Judge he is not a trustee by his turn and entitled to act as a trustee and deal with the trust properties.
7. The appeal fails and is dismissed. No costs.