Karnataka High Court
Maheshwari K vs Shanthi J on 7 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:5245
MFA No. 2096 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2096 OF 2023 (CPC)
BETWEEN:
1. MAHESHWARI K
W/O LATE J. KARUNAKAR
AGED ABOUT 43 YEARS
R/A NO.637, 63RD CROSS,
5TH BLOCK, RAJAJINAGAR
BANGALORE-560010
2. K. VINAY
S/O LATE J KARUNAKAR
AGED ABOUT 28 YEARS
R/A NO.637, 63RD CROSS,
5TH BLOCK, RAJAJINAGAR
BANGALORE-560010
3. KEERTHANA
Digitally signed
by SHARANYA T D/O LATE J KARUNAKAR
Location: HIGH AGED ABOUT 24 YEARS
COURT OF R/A NO.637, 63RD CROSS,
KARNATAKA
5TH BLOCK, RAJAJINAGAR
BANGALORE-560010
...APPELLANTS
(BY SRI. G.K.BHAT, SENIOR ADVOCATE FOR
SRI S.K.ACHARYA, ADVOCATE)
AND:
1. SHANTHI J.,
D/O LATE R. JAGANATHAN
W/O G. MANOHAR
AGED ABOUT 50 YEARS
-2-
NC: 2024:KHC:5245
MFA No. 2096 of 2023
R/A NO.298, 12TH CROSS
2ND PHASE, MANJUNATHA NAGAR
BENGALURU-560010
...RESPONDENT
(BY SRI. G.PAPIREDDY, ADVOCATE FOR
SRI VARUN P., ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(s) OF CPC,
AGAINST THE ORDER DATED 01.02.2023 PASSED ON I.A.
NO.V IN FDP NO.72/2020 ON THE FILE OF THE VIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
ALLOWING I.A. NO. V FOR APPOINTMENT OF RECEIVER UNDER
ORDER XL, RULE 1 READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and
also the learned counsel appearing for the
respondents
2. This appeal is filed challenging the order
passed by the Trial Court in allowing the application
filed under Order XL Rule 1 read with Section 151 of
Code of Civil Procedure, 1908.
3. Learned counsel appearing for the
appellants would vehemently contend that the order
NC: 2024:KHC:5245
passed by the Trial Court is erroneous as nothing has
been discussed and the impugned order passed by the
Trial Court has caused prejudice to the right of the
appellant. The very approach of the Trial Court in
entertaining the application filed under Order XL Rule
1 read with Section 151 of CPC is erroneous. The
counsel would also submit that in compliance of the
order of this court also, though belatedly filed the
affidavit, counter affidavit is filed along with the
statement of account. The counsel would also
vehemently contend that the rents, which have been
received are not sufficient to repay the EMI to the
Bank. He submits that the Bank is also pursuing the
auction of the property and if the property is
auctioned, it may cause loss to all the parties and
hence, the order requires to be set aside. He also
submits that the appellants will furnish the details for
having collected the rent as well as repayment of EMI.
NC: 2024:KHC:5245
The counsel also submits that already there is an
order not to alienate the property in the very FDP
proceedings itself and also R.F.A. is pending before
this court and this court has also granted the relief not
to pass the final decree.
4. Per contra, learned counsel appearing for
the respondent would vehemently contend that
inspite of a direction given by this court on
18.04.2023 to furnish upto date and latest accounts in
respect of the rents, profits and other details in
relation to the suit schedule properties to this court by
the next date hearing, no details are furnished. The
case was also listed in the month of November, 2023
and till date, neither any documents are filed nor have
furnished any details and when the affidavit was filed
and objection is filed to the same, a specific
contention is also taken by the respondent that except
filing of the affidavit, no documents or details are
NC: 2024:KHC:5245
given with regard to the rents, profits and other
details in relation to suit schedule properties.
Thereafter, counter affidavit is filed before this court
along with documents.
5. Having heard the learned counsel for the
appellants and also the counsel appearing for the
respondent, when an application is filed for
appointment of Receiver and admittedly, rents are
collected by the appellants herein and no details are
furnished before the Trial Court and suit is also filed
for the relief of partition and separate possession of
the plaintiffs half share in respect of item Nos.1 to 7 of
the 'A' schedule properties based on the preliminary
decree, FDP is also filed and an appeal is filed before
this court and this court also permitted to go ahead
with the proceedings and not to draw the final decree.
6. In the meanwhile, the respondent comes to
know about not furnishing any details and an
NC: 2024:KHC:5245
appropriate application is filed under Order XL Rule 1
read with Section 151 of CPC. It is the specific case of
the respondents also that a Receiver may be
appointed and an Advocate Commissioner was
appointed to visit the suit property and submit his
report and accordingly, the Court Commissioner has
filed his report stating that the tenants are paying
monthly rent of Rs.1,08,900/-. The appellants herein
have also filed objections to the said report contending
that the rents are not sufficient to pay the EMI.
7. The Trial Court taking note of the application
and the averments and also the objections of the
respondent made an observation that the appellants
herein have not disclosed all the details of the loans
and the rents received from the suit properties and
made an observation that in order to prevent the
wastage of the profit received from the suit properties,
it is proper and necessary to appoint the Receiver to
NC: 2024:KHC:5245
collect the rents from item Nos.1 to 4 and 7 of 'A'
schedule properties and to pay the EMI's of the Bank
loans, out of the rent amount and deposit the
remaining amount of the rent in the court till the
disposal of the petition and to pay 50% of the amount
deposited in the court each to the petitioner and the
respondents. The said order has been challenged
before this court.
8. Learned counsel appearing for the
appellants would vehemently contend that the order
impugned is not a reasoned order and counsel would
vehemently contend that no opportunity is given to
the appellants to submit with regard to the application
which has been filed by the respondent under Order
XL Rule 1 of CPC and heard both the counsels only on
the Commissioner's report.
9. The main grievance of the respondent is
that the appellants herein have not furnished the
NC: 2024:KHC:5245
details and are enjoying the rents, which they are
collecting and no details are also given and no dispute
with regard to the fact that the appellants are
collecting the rent and the trial court also while
allowing the application made an observation that no
details are given and order has been passed.
10. This court also directed on 18.04.2023 to
furnish up-to date and latest accounts in respect of
the rents, profits and other details in relation to the
suit schedule properties to this court by the next date
of hearing. Though this order was passed, no such
details are furnished and only an affidavit is filed in
the month of January. To the said affidavit, objection
is filed by the respondents and thereafter counter
affidavit is filed along with documents before this
court and also the counter affidavit does not disclose
anything about the directions given by this court. This
court vide order dated 18.04.2023 specifically directed
NC: 2024:KHC:5245
to furnish up-to-date and latest accounts in respect of
the rents, profits and other details in relation to the
suit schedule properties and inspite of it, no such
details are furnished before the court and it is nothing
but an eye wash by filing counter affidavit by the
appellants. When such being the case, when the
materials are neither placed before the trial court
furnishing the details, nor is placed on record even
before this court also inspite of specific direction given
by this court, mere filing of the counter affidavit by
the appellants is nothing but an attempt to avoid the
details and the submission of the learned counsel for
the appellant that it will affect the rights of all the
parties cannot be accepted. The very attitude of the
appellants is nothing but an attempt made to enjoy
the fruits of the decree without furnishing any
accounts and details even though there was a
preliminary decree to the extent of 50% in favour of
- 10 -
NC: 2024:KHC:5245
respondent and also a specific direction was given by
the trial court that the EMI amount and the surplus
amount, if any, be deposited before the court. I do not
find any error committed by the trial court in allowing
the application for appointment of Receiver to collect
the rent and pay the EMI amount and surplus amount
to deposit before the court having considered the
conduct of the appellant who have suppressed the
material before the Trial Court and also before this
Court. Hence, I do not find any merit in the appeal,
the same fails and is hereby dismissed
Sd/-
JUDGE
SS
