R.N. Ramasundaram vs Sivakami. and 5 others

K.A. Swami, C.J.—We have heard both the appeals on merits. LPA No. 175 of 1994 is preferred against the order dated 19.8.1993 passed by the learned single judge in C.M.P. No. 10807/93 in Appeal No 689 of 1993. rejecting the petition filed by the appellant for an order of temporary injunction restraining respondents 1 and 2 herein from alienating the suit lands. LPA No. 189/1994 is preferred against the order dated 8.10.1993 passed by the learned single judge in C.M.P. No. 10806/1993 filed in the aforesaid appeal for appointment of a receiver in respect of the suit properties. The learned single Judge has rejected the said pennon on the ground that the averments made in the petition are not sufficient to warrant appointment of a receiver

Appeal No. 689 of 1993 is preferred against the decree dated 30.4.1993 passed by the learned Subordinate Judge. Srivilliputhur in O.S. No. 80 of 1990 That was a suit filed for a declaration that the plaintiff is entitled to the suit properties and that the alienations effected in respect of the suit properties are not binding upon him and for possession of the same, The trial court has dismissed the suit.

Under the above circumstances, the questions that arise for consideration are

Whether in an appeal filed against the decree passed by the trial court dismissing the suit of the plaintiff claiming title to the suit properties, and seeking possession a receiver could be appointed? and

Whether in a case where transfers are effected one after another of the suit properties, and those transfers are pendente lite, there can be an order restraining the respondents from making any further alienation ?

Point No. 1:- The suit properties are agricultural lands Except that for some time the suit properties were not cultivated, there is no averment to the effect that any willful act of waste or damage is caused to the suit properties. The learned single judge has specifically found that no prima facie case warranting appointment of a receiver is made out. The learned single judge has also indicated that prima facie the plaintiff is entitled to 1/4th share, whereas it is the case of the plaintiff that defendants 1 and 2 together will not be entitled to more than 1/7th share. This issue has to be decided in the appeal. As on now the trial court''s finding is against the appellant-plaintiff. That apart, the condition for appointment of a receiver in the instant case cannot be held to have been satisfied. Under Rule 1 of Order 40 of the Code of Civil Procedure, the Court may appellant receiver before or after the decree. If it is satisfied that it is just and convenient of course in the instant case, the property is in possession of the respondent. Therefore, Sub-Kale (2) of Rule that have no application, as it limits the power of the Court in the case of a person, who is not a party the suit, and the plaintiff seeking an order to appointment of a receiver has no present right remove him. The words. ''Just and convened occurring in the rule do not mean that the court to appoint a receiver simply because its covenant. What is required to be seen is that appointment a receiver is necessary for the protection of rights for the prevention of any injury a cording to legal principles. Though the Court has discretion in the matter of appointment of receiver, such a discretion has to be exerted judicially and in accordance with the well established principles. Which govern the exercise of judicial discretion? In the instant case, as pointed out earlier, there is no pool as he causing waste or damage to the property in the even the plaintiff succeed, in the appeal he would be entitled not only to possession, but also to mesh profits. In addition to this, the learned single judge has also found that no prima facie case has been made out for appointment of receiver. We are the view that in the facts and circumstance of the case, learned single Judge has overused the discretion judicially. Therefore, there is no ground to interfere with the order of the leaned sing Judge, refusing to appoint a receiver According point No. 1 is answered in the negative

Point, No. 2: It is case in which transfers and being made one after another. When an alienation was about to take place, the appellant filed an application for temporary injunction. But after the disposal of the application filed for temporary injunction, the alienation took place in the appeal when similar application was filed, before it was heard for final disposal, alienation has taken place, in favour of N.S. Subbhan Raja and N.S. Gopal Raja, who have been impleaded today is additional respondents. No. doubt the alienation of any immovable property, which is the subject matter of a suit or proceeding, before any Court or a right to such immovable properly is directly or specifically in question in a suit or proceeding before a court, the transfer of such immoveable property cannot be effected so as to affect the rights of any other party to the proceeding under any decree of order which may be made in such suit or proceeding, except under the authority of the court and on such terms as the court may impose, any alienation taking place without the authority of the court will not affect the right of the non-alienating party and the purchaser pendente lite is bound by the result of the suit or proceeding. In the instant case, the immovable property, which is subject matter of the suit has been alienated without the consent of the appellant and even without the authority of the Court, As such, the alienations in question will ultimately be governed by the decree that may be passed. Therefore, normally, neither the aliened is impleaded nor any injunction is granted restraining him from alienating the suit properties. However, in a case where taking advantage of the disposal of the application for temporary injunction restraining the respondents from alienating the properties, the aliened effect further alienation. it becomes just and necessary to prevent further alienation so that the non-alienating parry who obtains a decree should not be put to hardship in enjoying the fruits of the decree. Therefore, we are of the view that the facts and circumstances or the case warrant granting of an injunction Point No. 2 is answered accordingly in the affirmative. For the reasons stated above. LPA. No. 189 of 1994 is dismissed, whereas L.P.A. No. 175 of 1994 is allowed. There shall be an order of injunction restraining the respondents 1, 2, 5 and 6 in the Letters Patent Appeal from effecting alienation of the suit properties pending disposal of Appeal No. 689 of 1993. It is open to the appellant in Appeal No. 689 of 1993. to implead the aliened who have not been impleaded in the said appeal, so that in the event the appellant succeeds in the appeal, there will not be any further difficulty in executing the decree and obtaining possession of the suit properties. We also direct the appellant to file necessary paper books in two months and the appeal be posted for hearing in the month of January, 1996. There will be no order as to costs.