1. This appeal arises from the order of Sabyasachi Mukharji J. dated 30th Sept., 1977, whereby the learned Judge has entertained an application made on behalf of the defendant No. 1 in the plaintiff's suit and was pleased to make an order appointing joint Receivers who were directed to allow the vessel in suit to be plied in respect of certain charter party agreement entered into by and between the defendant No. 1 and one M/s. Indo Icelandic Fisheries Pvt. Ltd.
2. We find from para. 13 of the petition that the agreement was to the effect that the said prospective charterer had clearly stipulated that unless the said vessel was delivered to them at the Port of Madras by late Oct., 1977, they would have the option to cancel the charter. However, nothing has since been heard of from the said party after the order was stayed by the appeal court In our view, the plaintiff has claimed a lien over the vessel which is in the custody and possession of the plaintiff and such lien should not be lightly disturbed in this manner on the application of one of the defendants in the plaintiff's suit and to allow the vessel to be plied through the joint Receivers in the manner as directed. We are of the view that the application is not maintainable inasmuch as the defendant No. 1 against whom the suit has been filed was trying to take advantage in the plaintiff's suit by obtaining such an order to the prejudice of the plaintiff.
3. Ordinarily, the Receivers are not allowed to carry on the business during the pendency of the suit. It is only under exceptional circumstances that the court would allow such business to be carried on through the Receivers but no such case has been made out by the defendant No. 1 in this case. In our opinion, it is not a fit case where the vessel should be allowed to be utilised in the manner it has been directed to be done.
4. That being so, in our view the appeal is bound to be and is hereby allowed and the order of the court below is set aside. The appellant is to get the costs of the appeal from the respondent No. 1.
5. I agree.