Telangana High Court
Prateek Patny vs Smt. Tara Devi Patny And 23 Others on 1 May, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
THE HON'BLE SMT. JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
C.M.A. No.426 OF 2022
JUDGMENT:
(Per Hon'ble Smt. Justice Moushumi Bhattacharya)
The appeal arises out of an order passed by the learned
Trial Court on 27.07.2022 in an application filed by the appellant
under Order XL Rule 1 read with Section 151 of The Code of Civil
Procedure, 1908 for appointment of Receiver.
2. The appellant is the plaintiff in O.S.No.4 of 2013 and filed
the Suit for partition and separate possession by metes and
bounds in respect of the appellant and the defendant Nos.1 - 6
(respondents in the appeal).
3. The appellant is the grandson of one Ashok Kumar Patny,
who died on 23.12.2011 and the defendant No.1 is the
grandmother of the appellant and the wife of Late Ashok Kumar
Patny. The defendant No.2 is the father of the appellant/plaintiff,
the defendant Nos.3 and 4 are the paternal aunts of the
appellant/plaintiff. The defendant Nos.5 and 6 are the sons of the
defendant Nos.3 and 4. The defendant Nos.7 - 17 are tenants who
are depositing rents in respect of the properties described in the
Will of the Late Ashok Kumar Patny. The defendant Nos. 18 and
19 are business entities started by Late Ashok Kumar Patny. The
defendant Nos.20-23 are bankers of defendant Nos.1-6 and the
defendant No.24 is an Insurance Company.
4. The appellant/plaintiff relies on a Will dated 14.07.2011 for
claiming the reliefs in the Suit. The respondent Nos.1, 3 - 6 rely
on an earlier Will dated 04.09.2010 of the Late Ashok Kumar
Patny, which the said respondents claim was read out in the
presence of all the family members after the demise of Ashok
Kumar Patny and that all the family members including the
appellant signed on the said Will. The answering respondents
also say that the Late Ashok Kumar Patny had executed
registered gift deeds dated 12.01.2005 and 02.06.2008 in favour of
the respondent Nos.4 and 6 whereby the said respondents
became the joint owners of a plot measuring 5515 Square Yards at
Secunderabad Cantonment (schedule I and K properties). The
said respondents are receiving rents from respondent No.15
pursuant to the properties being leased out to the latter.
5. A brief background to the present appeal is as follows:
5.1. The appellant/plaintiff had earlier filed I.A.No.58 of 2013
in O.S.No.4 of 2013 seeking injunction against the respondents
from alienating the suit schedule properties. The I.A. was
dismissed by the Trial Court on 09.02.2015 and the appellant
challenged the order of dismissal in C.M.A.No.467 of 2015. The
said C.M.A was dismissed by a Coordinate Bench on 30.08.2018 -
albeit with a direction on the respondent No.1 (grandmother of
the appellant) to pay 5% share of the rent received by the
respondent No.1 to the appellant as per the direction of the Trial
Court dated 09.02.2015. The Trial Court passed an order on
28.09.2021 directing the respondent No.1 to comply with the
order passed by the Coordinate Bench.
5.2. The appellant filed a second application bearing I.A.No.243
of 2022 seeking appointment of Receiver on the ground that the
respondent No.1 (his grandmother) failed to comply with the
orders passed by the Trial Court in 2015 and the Coordinate
Bench in 2018. The said I.A. was dismissed by the Trial Court by
the impugned order dated 27.07.2022 which resulted in the
present Appeal.
6. The appellant/plaintiff argues for setting aside of the
impugned order rejecting the appellant's application for
appointment of an Advocate as Receiver in respect of the suit
schedule properties. According to the appellant, the respondents
do not have any defence against non-compliance of the orders
passed by the Trial Court and the High Court in respect of
deposit of 5% of the rents to the share of the appellant's rights in
the suit schedule properties.
7. The respondent Nos.1, 3 - 6, on the other hand, place
emphasis on the appellant's conduct as the grandson of the
respondent No.1 and a close relative of the respondent Nos.3-6 to
say that the appellant has continuously interfered with the
respondents' peaceful possession and enjoyment of the properties
bequeathed to them by way of the Will of the Late Ashok Kumar
Patny dated 04.09.2010 and the gift deeds executed by Late Ashok
Kumar Patny in favour of respondent Nos.4 and 6.
8. The impugned order also records the conduct of the
appellant/plaintiff in failing to cooperate with the Court in
complying with the direction issued by the Coordinate Bench on
30.08.2018 for disposing of the Suit within four weeks from the
receipt of the order. The Trial Court also records that the
appellant filed the application for appointment of Receiver at the
stage of evidence of the appellant and that the only intention of
the appellant is to prolong the proceedings with an attempt to
mislead the Court with regard to deposit of 5% share of the rent
by the respondent No.1.
9. The relevant part of the impugned order notes that the
pleadings filed by the parties do not amount to a crystallized
right of the appellant in respect of the relief claimed in the Suit
which is for partition and separate possession of the suit schedule
property A-Z and AA-HH. The order also records the plethora of
defendants (24 in number) who have been made parties to the
Suit and that most of these defendants have not contested the
proceedings. Most pertinently, the impugned order records that
the appellant sought for appointment of Receiver in respect of the
suit schedule properties.
10. We agree with the reasons given by the Trial Court in
rejecting the appellant's application for appointment of Receiver.
There is no perversity or infirmity in the reasons given by the
Trial Court.
11. The law with regard to appointment of Receiver is found in
Order XL Rule 1 of The Code of Civil Procedure, 1908. Sub-Rule
(1) of Rule 1 of Order XL provides for 4 situations where the
Court may appoint a Receiver without dislodging the Court's
power to grant or refuse appointment of Receivers on equitable
considerations. Order XL Rule 1(1) begins with
"Where it appears to the Court to be just and convenient, the Court may
by order .....".
The provision makes it clear that appointment of Receivers
is not granted as a matter of course but only where the Court
deems it fit to make such appointment on being convinced that
the conditions under Order XL Rule 11(1)(a)-(d) exist and
warrant appointment of a Receiver. The conditions cannot be
said to be exhaustive since the Court preserves its power to refuse
appointment of Receiver even where all the conditions exist. The
Court's discretion is reinforced by the words "just and convenient"
which the Court may construe and assess under this Section.
12. The Court would not also ordinarily appoint a Receiver
except on a prima facie finding that the plaintiff has an excellent
chance of success in the Suit. The plaintiff must show an adverse
claim being made to the property as well as some imminent
danger to the property or loss to the plaintiff calling for
immediate action. The imminent risk of loss must clearly be spelt
out and be sufficient to prod the Court into invoking its
discretionary jurisdiction for appointing a Receiver. The conduct
of the party seeking such appointment would also be a relevant
consideration for the Court in exercising its discretion under
Order XL Rule 1(1) of the CPC.
13. In essence, appointment of Receivers is an exceptional and
unusual bend in the proceedings, even after a decree, where the
Court delegates in part the power to monitor the course of the
proceedings and prevent the subject matter of the Suit being
frustrated or even to prevent irrecoverable injury or loss to either
of the parties to the suits/decree. Collection of rents forms a part
of Order XL Rule 1(d) where a Receiver is given the power to
collect rents and profits pertaining to the suit property.
14. The Supreme Court and the High Courts have held in
unison of the complete discretion conferred on the Court in the
matter of appointment of Receivers under Order XL Rule 1(1) of
The Code of Civil Procedure, 1908; Kasturi Bai v. Anguri
Chaudhary 1, Parmanand Patel (dead) by L.Rs. v. Sudha A. Chowgule 2,
T.Krishnaswamy Chetty v. C. Thangavelu Chetty 3 and a Coordinate
Bench of this Court in Cheruku Swamy Nathan v. Venisetty Rathnam
(C.M.A.No.37 of 2021).
15. The facts brought to the notice of this Court do not indicate
any threat of injury or loss, immediate or otherwise, to the
plaintiff/appellant. There is clearly no imminent threat of the
appellant either being dispossessed of his original share in the
AIR 2001 SUPREME COURT 1361
(2009) 11 Supreme Court Cases 127
AIR 1955 MAD 430
property or being deprived of the fruits thereto. The appellant is
clearly hankering for the 5% share of rent from his
grandmother/respondent No.1 while continuing to enjoy the
benefit of the properties which are in the exclusive possession
and control of the appellant. It is also relevant that the appellant
has not been able to establish any title over the entire suit
schedule property of which the appellant seeks a Receiver.
16. The appellant has admitted that there are certain properties
which were gifted to the respondent Nos.3 and 5 by way of gifts
and have also been acted upon. Hence, the Trial Court was
wholly correct in its view that it was essential to determine the
appellant's entitlement for partition of the suit schedule property
and the extent of his share before appointing a Receiver in respect
of the entire property.
17. The decisions relied upon by the appellant do not take his
case forward. The fact of the appellant No.1 being an old lady,
who could not manage the task of collecting rent from the
tenants, weighed with the Supreme Court in Kasturi Bai. In
Parmanand Patel, the Supreme Court took into account the fact
that the first respondent was required to operate not only under
the Receiver but also in close collaboration with the Charted
Accountant. In Cheruku Swamy Nathan, a Coordinate Bench of
this Court specifically found that the appellant was collecting
rents out of the suit schedule immovable property and
appropriating the rents to himself. In Chelikam Rajamma v.
Padileti Venkataswami Reddy 4, a Coordinate Bench of this Court
was not satisfied of the plaintiff having made out any case for
appointment of Receiver.
18. With regard to the appellant's claim of 5% of the
respondents' share of rent, we note that the respondent No.1 has
deposited rents till 2020. The question of whether the respondent
No.1 should continue to deposit the rent is a matter which can be
taken up by the parties in appropriate proceedings for
adjudication. The subject matter of the present appeal cannot be
mixed up with the appellant's claim of 5% of the rents to be
deposited by the respondent No.1.
1993 (2) ALT 154
19. At present, the only issue before us is whether the
appellant had made out a case for appointment of Receiver over
the entirety of the suit schedule properties. Considering the
admitted facts, which have been placed before us, we are unable
to accept the contentions of the appellant, either in fact or in law.
We have also not found any infirmity in the impugned order
warranting our interference.
20. C.M.A.No.426 of 2022 is accordingly dismissed. There shall
be no order as to costs.
Pending miscellaneous applications, if any, shall stand
closed.
_________________________________
MOUSHUMI BHATTACHARYA, J
______________________________
NAGESH BHEEMAPAKA, J
Date: 01.05.2024
va
