MUTHANNA SHETTY Vs. BHAGI RAITHI

JUDGEMENT

(1.) Defendant-7 is the appellant in this appeal. Plaintiff filed OS.No.29 of 1958 on the file of the Civil Judge, Mangalore, and the Court, on 15th July 1960 passed a preliminary decree. Thereafter, further proceedings have been taken in RIA.No.2285/1967. An application IA.No.11 was filed in that RIA.2285/1967 requesting the Court to appoint a receiver regarding the properties in dispute. The learned trial Judge on 6th November, 1970 passed an order stating that he has persuaded the plaintiff not to press the application at that stage and proper arrangement for payment of their share of income of the properties would be made. The parties agreed to that and the learned Judge consequently passed an order stating that the plaintiffs should file a memo showing their share of income of the properties baased on the income report, as modified by the further report filed bv the Commissioner and that defendants should also file similar memos. The learned Judge in that order has stated: "In doing so the petitioners will take into account Kopre property which is in the possession of the 7th defendant." After the filing of the memo, the learned Judge considered LA. No.11 and passed the following order:

(2.) The learned Counsel for respondents 2 to 6, 9, 13 and 17 to 20 have raised a preliminary objection that the appeal is not maintainable under the provisions of Or.43, R.1 (s) CPC. In support of this submission reliance was placed upon a judgment of this Court in Venkataya Hegde v. Talaja Heggadthi, MA. 114/57. decided on 5-11-1967. Under the provisions of Or.43, R.1(s), an appeal would lie from an order passed under sub-rule(1) or (4) of Or.40 CPC. Or.40, R.1 or 4 provide for the appointment of a receiver or for enforcement of the duties of the receiver. In the present case, the learned Judge has persuaded the plaintiffs not to press the application for appointment of a receiver and in exercise of his jurisdiction under S.151 CPC. the learned Judge has passed the order under appeal. In Venkataya Heqde's case (1) which was decided by this Court the position was Similar. In that case also an application for appointment of a receiver was made by the plaintiff. The lower Court in that case passed an order directing that the amount to be ascertained by the Commissioner should be deposited and if that amount was not deposited, the application for appointment of the receiver in respect of the properties would be considered. It was that order that was challenged before this Court. This Court considering the said question has stated as under:

(3.) The learned Counsel for the appellant submitted that it may be treated as a revision petition. Accordingly I granted permission to the petitioner to urge the contention treating this as a revision petition. The only contention advanced by the learned Counsel for the petitioner is that according to him, the petitioner was entitled to the Kopre properties and that is what he has contended in paragraph 15 of the written statement. It is further submitted that by the preliminary decree passed in the suit at paragraph 3, it has been held that defendant 7 would be entitled to retain possasion of the plaint C schedule property described therein during his life time. The rase of defendant 7 in this Court is that the mention of C schedule property is a mistake for Kopre properties. In my view this is not the contention which could advanced in this revision petition or in this Court. If his contention is that there was a mistake in the preliminarv decree, the proper remed is to make an application for correction of the same. But, as long as the decree stands, the contention of the Counsel for the petitioner cannot be accepted. The learned Advocate for the respondents brought to my notice that the suit is filed in 1P58 and the preliminary decree has been passed in 1960. and. even then defendant 7 has been successfully avoiding to give them their legitimate shares. Having regard to the circumstances, I do not think that the Court below in passing the order under revision has exceeded its powers.