MUHAMED Vs. ABDULLAKUTTY ALIAS BAVA

JUDGEMENT

(1.) Considerable industry has been displayed by counsel on both sides in unearthing all possible points that could be pressed and decisions that could be cited in support of the rival view points presented before me in the case.

(2.) I may state the facts briefly to the extent relevant for appreciating the contentions raised in this revision petition. Two brothers, figuring as revision petitioner and respondent, are the parties to this case. O. S. No. 12 of 1965 was brought by the plaintiff, who is the respondent before, me, for a permanent injunction restraining the defendant (revision petitioner) from interfering with the possession of the former. While this suit (O. S. No. 12 of 1965) was pending, I. A. No. 64 of. 1965 was filed by the plaintiff seeking an interim injunction which was granted ex parte and subsequently made absolute. C. M. A. No. 296 of 1965 was filed against this order by the aggrieved defendant, and the learned Subordinate Judge who heard the appeal remanded the case to the Trial Court. Whereupon, a Civil Revision Petition (C. R. P. No. 349 of 1966) was filed by the plaintiff which was eventually dismissed with a direction to dispose of the suit itself expeditiously. When the C. R. P. was pending in the High Court, I. A. No. 34 of 1967 was filed on 4-1-1967 by the plaintiff for the appointment of a receiver. The learned Munsiff dismissed it on 15-2-1967 by a strange order. He said "1 do not think, that in the above circumstances (he was referring to the pendency of the Civil Revision petition in the High Court against an order of injunction) it will be proper for this court to consider the question of appointing a receiver at this stage, even if the pendency of the revision petition will not constitute a bar, because the question regarding the possession of the property is necessarily involved in that, since no receiver could be appointed unless there is a danger of the property being wasted or there is real difficulty in deciding the question as to who is in actual possession of the property. Moreover, all the relevant records have been forwarded to the High Court for reference in the Civil Revision Petition and therefore it appears to me that if the plaintiff thinks that the circumstances warrant the appointment of a receiver, the proper course to be adopted is to make an application before the High Court for that relief. I am therefore of opinion that no receiver could be appointed as prayed for." In a suit pending before a Court an injunction application was disposed of by it, and eventually the interlocutory proceeding was the subject matter of a revision petition. I do not know on what basis the learned Munsiff says that therefore an application for the appointment of a receiver should be made in the High Court. The less said about the legal knowledge behind this order the better.

(3.) Anyway, an appeal was filed (C. M. A. No. 45 of 1967) before the District Court which was transferred to the Sub Court and renumbered as C.M.A.No.89 of 1962. The Munsiff dismissed the receiver application on 15-2-1967. The C. M. A. was filed on 1-6-1967. When the C. M. A. was pending, the suit itself was decreed in favour of the plaintiff on 30-3-1968. An appeal was filed promptly by the brother, who lost the battle, as A. S. No. 185 of 1968, and he got a suspension of the operation of the permanent injunction decreed by the Trial Court. This order was passed on 28-5-1968, and the C. M. A. itself was allowed much later on 24-3-69. The learned Subordinate Judge directed the appointment of a receiver as he felt it was just and convenient to do so. It is this order that is the subject matter of attack before me by the defendant who is the revision petitioner.