SRINIVASA RAO Vs. BABURAO

JUDGEMENT

(1.) The petition is directed against an order made in Misc. C. A. No. 31/5/1966, on 21-12-1966 by the learn-ed Civil Judge, Gulbarga. The said ap-peal was preferred by the first respondent herein against an order of appointment of a receiver made in O. S. No. 165/1 of 1965, by the learned Munsiff. Shorapur.

(2.) The few facts necessary for the disposal of the petition are as follows:-- The petitioner is the plaintiff in O. S. No. 165/1 of 1965. He has sued for a decree declaring his title to the suit schedule properties and for an Injunction. The suit was filed against the res-pondent herein as also one Narayana Rao. The second respondent Paddamma and one Gundamma were the widows of one Subba Rao. Subsequent to the death of Subba Rao. the two widows are said to have divided the properties inherited by them and continued to be in separate possession and enjoyment of their respective shares till the death of the widow Gundamma on 14-8-1965. The present petitioner claiming to be the legatee under a will executed by the said Gun-damma has filed this suit. The first res-pondent Babu Rao also filed a suit O. S. No. 89/1 of 1965 in the same Court in res-pect of the same properties and for simi-lar reliefs on 1-9-1965 claiming to have been adopted by Gundamma. The suit of the present petitioner was filed on 21-8-1965. In both the suits temporary in-junctions were granted. In regard to the injunction granted in favour of the first respondent, who is the plaintiff in O. S. No. 89/1/1965, it transpired that the same was made absolute after a decision in an appeal before the learned District Judge, Gulbarga, A subsequent petition before the Court under Section 115, C.P.C was also dismissed, thus sustaining the order of injunction granted in favour of the first respondent in respect of the very properties involved in the present suit. The petitioner before this Court having been unsuccessful in his attempts to resist the grant of an injunction in O. S. No. 89/1/65 filed by the first respondent here-in, filed an application for the appoint-ment of a receiver under Rule 1, Order 40, C.P.C. In O.S. No. 165/1 of 1965 the trial Court allowed the application and granted the relief prayed for. The third defen-dant therein namely, Babu Rao preferred an appeal before the learned Civil Judge, Gulbarga, against that order for appoint-ment of a receiver. The appellate Court set aside the order made by the trial Court and dismissed the application for the appointment of a receiver. Aggriev-ed by this order, the plaintiff has ap-proached this Court in the present revision petition.

(3.) Sri B. Murlidhar Rao, the learned counsel appearing for the petitioner, formulated the following two propositions 1. That the order for appointment of a receiver without appointing any person by name was not appealable within the meaning of Rule 1 (s) of Order 43, C. P. C. and as such the decision in appeal would be one without jurisdiction. 2. That, at any rate, the order for appointment of a receiver was one falling purely within the judicial discretion of the trial Court and as such should not have been interfered with in appeal in the absence of material pointing to an abuse of such discretion.