THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL MISCELLANEOUS APPEAL NO.171 of 2016
JUDGMENT:
This Civil Miscellaneous Appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short „CPC‟) is filed by the appellant/plaintiff against the order, dated 17.11.2014 passed in I.A.No.320 of 2014 in O.S.No.62 of 2013 on the file of learned Principal Senior Civil Judge, Eluru, whereby the petition filed by him under Order XL Rule 1 and Section 151 of CPC seeking to appoint Receiver to take possession of the schedule property, to auction the lease hold rights every year and to deposit the proceeds into the Court pending disposal of the suit, was dismissed.
2. The appellant being the plaintiff filed O.S.No.62 of 2013 for declaration to declare him as absolute owner of the plaint schedule property and also for relief of possession.
3. The case of the appellant/plaintiff, in brief, is that respondent No.1/defendant No.1, out of love and affection settled land to an extent of Ac.1-88 cents in R.S.Nos.50/1 and 50/2 (Ac.1-03 cents in R.S.No.50/1 and Ac.0-85 cents in R.S.No.50/2), Rajupeta Village, Pedapadu Mandal in favour of the appellant/plaintiff under registered settlement deed, dated 27.10.1998. Since the appellant/plaintiff was minor, his junior maternal grandfather and maternal uncle acted as his guardians. The appellant/plaintiff was born on 02.06.1992 and 2 he attained the age of majority on 02.06.2010. From the date of execution of settlement deed appellant/plaintiff is in possession of the suit schedule property. The junior maternal grandfather and maternal uncle of the appellant/plaintiff got the land cultivated till he returned to Rajupeta. While so, in view of the hostile attitude of the respondents/defendants, the appellant/plaintiff verified with Sub-Registrar Office, Vatluru and noticed that respondent No.1/defendant No.1, without any lawful right or authority executed cancellation deed, dated 07.09.1999 and pursuant to execution of said cancellation deed, respondent No.1/defendant No.1 executed settlement deed, dated 22.04.2006 in favour of respondent No.2/defendant No.2 in respect of land to a total extent of Ac.2-15 cents (Ac.1-03 cents in R.S.No.50/1 and Ac.1-12 cents in R.S.No.50/2 of Rajupeta village). Respondent No.2/defendant No.2 in turn executed sale deed, dated 24.12.2009 in favour of respondent No.3/defendant No.3 in respect of land to a total extent of 1-15 cents (Ac.0-03 cents in R.S.No.50/1 and Ac.1-12 cents in R.S.No.50/2 of Rajupeta Village). In the plaint it was further averred that respondent No.1/defendant No.1 has no authority to cancel the settlement deed executed in favour of the appellant/plaintiff and to execute settlement deed in favour of respondent No.2/defendant No.2. Thus, the suit was filed.
4. Pending the suit, appellant/plaintiff filed I.A.No.320 of 2013 to appoint Receiver in respect of the suit schedule property 3 and to auction lease hold rights every year, deposit proceeds into the Court pending disposal of the suit. In the affidavit filed in support of the petition, the appellant/plaintiff reiterated the averments of the plaint with regard to execution of settlement deed in favour of the appellant/plaintiff and execution of cancellation deed as well as settlement deeds by the respondents/defendants. It was also averred that the respondents/defendants, without any lawful right or authority, are squatting on the suit schedule property and swallowing the entire income derived from the suit schedule property, as such it is just and necessary to appoint Receiver to the suit schedule property, auction lease hold rights every year and to deposit proceeds into the Court.
5. The respondents/defendants did not contest the application. However, the respondents/defendants filed written statement in the main suit.
6. The Court below by order, dated 17.11.2014, dismissed the application. Aggrieved by the same, the present appeal is filed.
7. Heard Sri K. Sita Ram, learned counsel for the appellant and Sri D. Madhusudhan, learned counsel for the respondents.
8. Learned counsel for the appellant/plaintiff submits that respondents/defendants are acting detrimental to the interest of the appellant/plaintiff and in the event of the appellant/plaintiff 4 succeeding the suit, it will be very difficult for him to realize the mesne profits, as such appointment of Receiver is necessary and thus, he prays to allow the appeal.
9. Learned counsel for the respondents/defendants submits that nothing was averred in the affidavit with regard to misdeeds of the respondents/defendants, which is sine qua for appointment of Receiver. He submits that settlement deed, said to have been executed in favour of the appellant/plaintiff was not acted upon. He further submits that there are no merits in the appeal and also stated that the trial in the suit has been commenced and it is coming for cross-examination of plaintiff‟s witnesses. Thus, he prays to dismiss the appeal.
10. Now the point that arises for consideration of this Court is "Whether a case has been made out for appointment of Receiver?"
11. The appellant/plaintiff who filed petition under Order XL Rule 1 of CPC has to satisfy the Court that the respondents/defendants are misappropriating the funds and causing damage to the suit schedule property. For appointment of Receiver, prima facie case and good title over the property are required.
12. Going by the averments of the plaint and affidavit, respondent No.1/defendant No.1 executed settlement deed in favour of the appellant/plaintiff on 27.10.1998 and it was 5 cancelled on 07.09.1999. Later respondent No.1/defendant No.1 executed settlement deed, dated 22.04.2006 in favour of respondent No.2/defendant No.2, who in turn executed settlement deed, dated 24.12.2009 in favour of respondent No.3/defendant No.3. The suit was filed in the year, 2013 seeking declaration of possession of the property. In the absence of title and as the averments in the petition do not disclose with regard to causing waste to the property, petition filed by the appellant/plaintiff seeking appointment of Receiver is not maintainable.
13. In T. Krishnaswamy Chetty v. C. Thangavelu Chetty and Others1, it was held as under:
"17. The five principles which can be described as the „panch sadachar‟ of our Courts exercising equity jurisdiction in appointing receivers are as follows:
(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or absolute: it is a sound and judicial discretion, taking into account all the circumstances of the case, exercised for the purpose of permitting the ends of justice, and protecting the rights of all parties interested in the controversy and the subject-matter and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceeding:
(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie; he has very excellent chance of succeeding in the 1 AIR 1995 Mad 430 6 (3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. A Court will not act on possible danger only; the danger must be great and imminent demanding immediate relief. It has been truly said that a Court will never appoint a receiver merely on the ground that it will do no harm.
(4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a „de facto‟ possession since that might cause irreparable wrong. If the dispute is as to title only, the Court very reluctantly disturbs possession by receiver, but if the property is exposed to danger and loss and the person in possession has obtained it through fraud or force the Court will interpose by receiver for the security of the property. It would be different where the property is shown to be „in medio‟, that is to say, in the enjoyment of no one, as the Court can hardly do wrong in taking possession: it will then be the common interest of all the parties that the Court should prevent a scramble as no one seems to be in actual lawful enjoyment of the property and no harm can be done to anyone by taking it and preserving it for the benefit of the legitimate who may prove successful. Therefore, even if there is no allegation of waste and mismanagement the fact that the property is more or less „in medio‟ is sufficient to vest a Court with jurisdiction to appoint a receiver. Otherwise a receiver should not be appointed in supersession of a bone fide possessor of property in controversy and bona fides have to be presumed until the contrary is established or can be indubitably inferred. (5) The Court, on the application of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. He must come to Court with clean hands and should not have disentitled himself to the equitable relief by latches, delay, acquiescence etc."
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14. It is also settled principle that appointment of Receiver is discretionary and the power to be exercised by the Court is to preserve subject property pending adjudication of rights of the parties. The purpose or object of appointment of Receiver is to benefit those ultimately found to be the original owners.
15. In the case on hand, rights of the parties are subject to adjudication after full pledged trial and in fact Court below considered all these aspects and dismissed the petition. This Court finds no merits in the appeal and the same is liable to be dismissed.
16. Accordingly, this Civil Miscellaneous Appeal is dismissed. No costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI Date : 27.07.2022 IKN 8 149 THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI CIVIL MISCELLANEOUS APPEAL NO.171 of 2016 Date : 27.07.2022 ikn