R N RAMASUNDARAM Vs. SIVAKAMI

JUDGEMENT

(1.) WE have heard both the appeals on merits. LPA No. 175 of 1994 is preferred against the order dated 19.8.1993 passed by the learned single judge in C.M.P. No. 10807/93 in Appeal No. 689 of 1993, rejecting the petition filed by the appellant for an order of temporary injunction restraining respondents 1 and 2 herein from alienating the suit lands.

(2.) LPA No. 189/1994 is preferred against the order dated 8.10.1993 passed by the learned single judge in C.M.P. No. 10806/1993 filed in the aforesaid appeal for appointment of a receiver in respect of the suit properties. The learned single Judge has rejected the said petition on the ground that the averments made in the petition are not sufficient to warrant appointment of a receiver.

(3.) POINT No. 1 :- The suit properties are agricultural lands. Except that for some time the suit properties were not cultivated, there is no averment to the effect that any wilful act of waste or damage is caused to the suit properties. The learned single judge has specifically found that no prima facie case warranting appointment of a receiver is made out. The learned single judge has also indicated that prima facie the plaintiff is entitled to 1/4th share, whereas it is the case of the plaintiff that defendants 1 and 2 together will not be entitled to more than 1/7th share. This issue has to be decided in the appeal. As on now the trial court's finding is against the appellant-plaintiff. That apart, the condition for appointment of a receiver in the instant case cannot be held to have been satisfied. Under Rule 1 of Order 40 of the Code of Civil Procedure, the Court may appoint a receiver before or after the decree, if it is satisfied that it is just and convenient. Of course, in the instant case, the property is in possession of the respondent. Therefore, Sub-Rule (2) of Rule 1 will have no application, as it limits the power of the Court in the case of a person, who is not a party to the suit, and the plaintiff seeking an order for appointment of a receiver has no present right to remove him. The words, "Just and convenient" occurring in the rule do not mean that the court is to appoint a receiver simply because it is convenient. What is required to be seen is that appointment of a receiver is necessary for the protection of rights or for the prevention of any injury according to legal principles. Though the Court has discretion in the matter of appointment of receiver, such a discretion has to be exercised judicially and in accordance with the well established principles, which govern the exercise of judicial discretion. In the instant case, as pointed out earlier, there is no proof as to causing waste or damage to the property. In the event the plaintiff succeeds in the appeal, he would be entitled not only to possession, but also to mesne profits. In addition to this, the learned single Judge has also found that no prima facie case has been made out for appointment of a receiver. We are of the view that in the facts and circumstances of the case, learned single Judge has exercised the discretion judicially. Therefore, there is no ground to interfere with the order of the learned single Judge, refusing to appoint a receiver. Accordingly point No. 1 is answered in the negative.