ITTAN PILLA Vs. MANNADA

JUDGEMENT

(1.) The civil revision petition comes before this Division Bench on a direction given by my learned brother who heard it as a Single Judge. The point raised before the Single Judge was whether it is open to the court to appoint a receiver under O. XL R. 1 of the Code of Civil Procedure suo moto without an application for such a relief by the parties. We have today held in C.M.A. 212 of 1951 that it is competent to a court to make an order for the appointment of receiver when the application pending before it is for an injunction. In deciding that case we pointed out that in ILR 36 Allahabad 19, a similar view was taken by the Allahabad High Court. We were not inclined to adopt the view expressed by a Division Bench of the Madras High Court reported in AIR 1951 Mad. 706 . The reason why the learned Judges of the Madras High Court did not approve the principle that a court could appoint a receiver suo moto was that no authorities were cited before them to show that such a power could be exercised by the court. We have referred to the case in ILR 36 Allahabad 19. That decision has been approved by a Division Bench of the Lahore High Court in which Sir Shadi Lal, the Chief Justice was a member where the learned Judges held that the Court has the right to proceed under O. XL, R. 1 where it appears to be just and convenient to do so and that the Court can make an order suo moto without an application for that relief presented by any of the parties. There is also the decision of a Division Bench of this High Court in CMA 174 and 175 of 1951 in which a similar view was taken by two learned Judges of this High Court, one of whom is a member of this Bench.

(2.) In these circumstances, there cannot be any difficulty in dealing with this civil revision petition where the question raised is whether in lieu of an injunction that was applied for and obtained the court below could appoint a receiver. The difficulty if any in the present case has vanished subsequent to the direction made by my learned Brother to refer this case to a Division Bench for disposal because it is represented that an application of appointment of receiver. The property in question consists of a plot of land title over half an acre in extent. Feelings seem to be running high as a result of the dispute between the appellant and the respondent for possession of this land. It is represented that as a result of an attack made on him, the appellant had several bones of his body broken and he has only recently been discharged from the Ernakulam General Hospital where he was undergoing treatment. In these circumstances, it is highly desirable that a receiver should be appointed to be in charge of the property pending disposal of O.S. No. 594 of 1123 on the file of the District Munsiff of Perumbavoor. Both parties agree that advocate Mr. K.V. Varkey who was at one time appointed as commissioner for submitting a report on this land may be appointed receiver. He is accordingly appointed receiver subject to his consenting to act as such. The terms of the appointment shall be fixed by the District Munsiff of Perumbavoor having due regard to the income derived from the property and the amount which the parties are willing to pay as commission to the receiver. Pending the receiver taking charge of the property, there will be an order prohibiting both the appellant and the respondent from taking possession of the property and from entering into the property in view of the mischievous tendencies exhibited by them in making violent physical attacks.

(3.) The parties shall bear their own costs in this Civil Revision Petition in view of their turbulent attitude. The court below in case it is found that the Advocate Varkey is not willing to act as receiver may make a fresh appointment after giving notice to both parties. The court below need not in that case wait till an application is made for the appointment of receiver.