KESAVAN NAIR Vs. NEELAKANTA PANICKER

JUDGEMENT

(1.) The plaint in the case had obtained a preliminary decree for partition of one-half of some of the properties. This decree was confirmed by the High Court in 1118. Since no progress was made in the case, he applied for the appointment of a Receiver in the matter of collection and distribution of the profits from the properties. That was allowed by the High Court and confirmed by this Court in C.M.A. 261 of 1123. The operative portion of this Courts order is as follows: We think that the appropriate order is to appoint a receiver who will collect the yield under his personal supervision and pay one-half of it into court to the credit of the plaintiffs allowing the defendants to take the rest. If any difficulty is experienced in the collection and distribution as above directed he will take orders from the court for leasing out the entire lands by public auction or allowing the defendants themselves to take leases if sanctioned by the court. After the case went back to the lower court one Krishna Panicker was appointed as receiver. He surrendered his order because according to him these properties were lying mingled with other properties of the defendants and it was not possible for him to identify the properties without the help of a plan. He was removed from the receivership and on 17th Meenam 1124, the plaintiffs suggested the name of a District Court Vakil practising in Vycome as the receiver. He was accordingly appointed as receiver on 19th Meenam 1124. The courts closed thereafter and soon after the reopening he filed a report that he took possession of the properties on 23rd Medam 1124. He then filed a petition in court for sanction to lease out the properties by auction. The entry in the progress diary of the case which itself is defective in various ways would show that on 6th Karkadagam 1124 an order was passed in the presence of the Advocates in the case whose arguments were also heard allowing the Receiver to lease out the properties by auction but to keep separate accounts of each item of properties. The Receiver on 28th Karkadagam 1124 filed a report in court stating that he had fixed the date for auction as 5th Chingam 1125 and that he had given notice of the same to both sides. Immediately afterwards on 4th Chingam 1125 the 5th defendant filed objections to this and applied to adjourn the auction for 7 days. The case was posted to 8th Chingam 1125 when the plaintiff and receiver filed their answers to the 5th defendants objections. On 10th Chingam 1125 the 5th defendant again applied to adjourn the auction for a week. The auction was adjourned to 17th Chingam 1125. In the meanwhile one of the defendants filed a revision petition before the High Court and got a stay of proceedings on 16th Chingam 1125. This related only to the further trial of the case and not to the steps taken by the receiver. The receiver on 17th Chingam 1125 auctioned the right to collect the produce for one year and filed a report in court. The defendants present contention is that this auction was without notice and this position is accepted by the Judge below. Both the defendants and the Judge have fallen into a grave error of not getting themselves acquainted with what transpired in the case before. The petition of the defendants to adjourn the sale would clearly show that they were aware that the auction was to take place. The court had also adjourned the auction to 17th Chingam 1125 in the presence of the parties. The court subsequently on 20th Kanni 1125 passed orders to return item 54 to the party from whom possession was taken and to write to the police, Vycome to render the receiver all possible help.

(2.) The Receiver had given the properties on lease to strangers as well as to the plaintiff in the case. This took effect in Chingam 1125 and the lower court on 6th February 1950 passed the present order setting aside the auction. The Judge had not taken into consideration the extreme hardship that would be caused in passing such orders. Some of the properties are paddy lands and after the lease, the lessees had cultivated them. They had to incur a lot of expenses for the purpose and to say after a lapse of 4 or 5 months that they were to surrender back the properties immediately and receive the advances made by them to the Receiver is not an order advancing justice.

(3.) The position of the defendant was that the Receiver had never taken possession of the properties or that he was never allowed possession of the properties by the defendants. It was therefore stated that the lessees could not have obtained possession. The defendants could not be heard to advance any such case. It was on their appeal that this court found that a Receiver had to be appointed and directed the lower court to appoint a Receiver for the purpose. A Receiver was also appointed in Meenom 1124. He had filed a report in court that he had taken possession of the properties. He had sought for the sanction of the court for leasing out the properties in auction. The defendants objected to the same and in spite of their objections the auction was allowed to take place on 17th Chingam 1125. To contend now that all these steps were ex parte without the knowledge of any of the defendants in the case is one which no court is allowed to encourage. The court has now set aside the arrangement made by the Receiver and asked the Receiver to lease out the identical properties to the several defendants on the terms offered by the several lessees. This is not a proper administration of the just rights of the parties in the case. As pointed out by Woodroffe, J. in Krista Chandra Ghose v. Krista Sakha Ghose ILR 36 Cal. 52 where a lease had been already granted by a Receiver acting under an order of court, and possession of the property had been given to the lessee, and subsequently certain parties applied to the court for a declaration that the lease was invalid, and for certain other reliefs against the Receiver and the lessee, it was not open to the court to pass any summary order setting aside the lease. There would be only one or two months more for the lease to expire and it would then be more appropriate for the court to pass the necessary orders if it was of opinion that the previous lease arrangement was not advantageous to the estate. It is also expected that the lower court would be more careful in future and pass appropriate orders on petitions instead of lamenting over orders passed by stating that the court was unfortunately persuaded to sanction the proposals without getting itself acquainted with the facts of the case. The views that the auction proceedings of the Receiver are void and are of no legal effect is absolutely wrong and unsustainable.