LAKSHMINARAYANA PURANIKA Vs. K. VENKATESHA BHAT AND ORS.

JUDGEMENT

(1.) These petitions are filed by the petitioner -plaintiff challenging the order passed by the Senior Civil Judge, Kundapur in M.A. No. 9/2012 dated 7.2.2014 produced as per Annexure 'H'.

(2.) Heard the arguments of learned counsel for the petitioner -plaintiff and also learned counsel for the respondents.

(3.) Petitioner -plaintiff filed a suit claiming that he is the Archak and also Trustee of Mahalingeshwara Temple and Surya Narayana Temple of Kumbashi village. Respondent No. 10 by filing an application before the competent authorities got himself appointed as the trustee of the said two temples and taking undue advantage of his possession, is mismanaging the properties of the said two temples. It is also the claim of the plaintiff in the suit that his predecessors were also Archaks and trustees in the said temples. In the said suit, he has also filed I.A. No. IV under Order 40 Rule 1 of CPC requesting the Court that in view of the acts of respondent No. 10 regarding mismanagement misappropriation of the income and properties of the said two temples, in the interest of all the trustees and disciples it is necessary to appoint receiver to manage the said property till the disposal of the said suit. The said application was opposed by the defendants by filing detailed objection statement. After considering the merits, ultimately, the trial Court allowed the application and appointed the receiver. Learned counsel has submitted that while passing such order, the trial Court has taken into consideration all the materials produced in the case and also the submissions made during the course of hearing of the said application namely, the trial Court found that plaintiff has made out a case for appointment of receiver to manage both the temples till the disposal of the suit. Accordingly, defendant No. 8, the Deputy Commissioner was appointed as the receiver to manage the properties. He has submitted that respondent No. 10 challenged the order of the trial Court by preferring Miscellaneous Appeal No. 9/2012 before the first appellate Court wherein, the first appellate Court has wrongly appreciated the materials, so also, the order of the trial Court and allowed the appeal and set aside the order of the trial Court holding that plaintiff has not established his case that there is mismanagement and misappropriation of funds of two temples. The appellate Court has held that unless and until the requirements of Order 40 of CPC are complied with, the receiver cannot be appointed. Accordingly, Miscellaneous Appeal was allowed and the order of the trial Court was set aside. Learned counsel submitted that this observation of the first appellate Court is patently illegal and not in accordance with the documents produced before the trial Court, which were properly appreciated by the trial Court. He has submitted that since from the date of the order of the trial Court i.e., from 11.9.2012, the Commissioner has taken possession and managing two temples smoothly without there being any sort of disturbance or hindrance from anybody. Hence, the judgment and order of the first appellate Court is to be set aside and the official receiver who has been appointed shall have to be continued to manage the properties till the disposal of the suit.