Andhra Pradesh High Court - Amravati

Merugumala Ravi Kumar vs Merugu Ramulu 2 Others on 27 July, 2022

     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

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

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

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

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

AIR 1995 Mad 430

(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."

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.