Salma Majhi and Others vs Bija Majhi and Others

P.K. Tripathy, J.—Heard.

In this application under Order 40, Rule 1, CPC, plaintiff-appellants pray for appointment of receiver of the suit land measuring an area of Ac.

7.91 decimals.

On a bare reading of the provision in Order 40, Rule 1, CPC, it is clear that the matter relating to appointment of receiver is purely at the

discretion of the Court. It is the well accepted principle that such discretion should be exercised judiciously and not arbitrarily. Therefore, from the

facts and circumstances, available to it, a Court shall consider whether it is just and convenient to appoint a receiver for the subject matter of

dispute. In that context, it is to be considered, if the party applying for appointment of receiver has an excellent chance of success in the suit, there

is danger to the suit property being wasted or mis-managed or the disputed property remains uncared for being in medio and that the person

applying for the appointment of receiver has a better claim over the subject matter of dispute then the person who is in wrongful possession of the

same. All such requirements to the extent of availability and applicability are to be considered with due reference to the pleadings and the evidence

available on record.

Learned counsel for the plaintiffs/petitioners argues that appointment of receiver in this case will not be of any inconvenience to either of the

parties, if the property shall be brought under receivership and every year leased to the highest bidder and that in that way the income from the suit

property can be preserved in favour of the successful party in the litigation. The aforesaid argument has no backing law and equity in as much as an

order of appointment of receiver will result in dispossession of the party who is in possession. Therefore, without being satisfied about existence of

relevant circumstances as noted above, order for appointment of receiver should not be passed only on the ground of no inconvenience to either of

the parties.

While expressing that appointment of receiver is a harshest remedy Madras High Court in the case of T. Krishna Swamy Chetty v. C.

Rangavelli Chetti AIR 1955 Mad 430, propounded five principles, popularly known as ''Pancha Sadachar'' to be comprehended while considering

am application for appointment or receiver. Similar view is expressed by the said Court in the case of Muniammal v. P. M. Ranganatha Nayagar

and Anr.AIR 1955 Mad 571. In the case of Rasi Dei Vs. Bikal Maharana and Others, this Court has also held that in a suit for partition, the party

in possession should not be evicted by an order of appointment of receiver unless reasonable circumstances are made out.

On a conspectus of the facts and circumstances put forth before this Court it appears that in the concurrent impugned judgments and decrees

passed by the Courts below they have declined to grant a decree for partition in favour of the plaintiff-petitioner. Admittedly, petitioners have

neither alleged nor substantiated ground of wastage and damage of the suit property in the hands of the defendants. They have also stated nothing

justifying a ground of urgency. Thus, this Court finds it irresistible to reject the application.

Accordingly, the prayer for appointment of receiver is rejected and the Misc. case is dismissed.

Learned counsel for the appellant, prays that the appeal be listed for early hearing. Therefore, Deputy Registrar (Judicial) is to see that L.C.R. be

obtained and the appeal be listed for hearing.