GAURI SHANKAR Vs. GHANSHYAM DASS AND OTHERS

JUDGEMENT

(1.) THIS is an appeal Under Order 43, Rule 1 of the Code of Civil Procedure against an order of the learned Civil Judge, Agra, dismissing an application filed by the Appellant for the ejectment of certain persons alleged to be trespassers and for a direction requiring the erstwhile Receiver to submit accounts of realisations made by him.

(2.) ONE Kishan Lal filed a suit against the Appellant and during the pendency of the suit the trial court made an order dated 5 -5 -1955, appointing Kishan Lal as the Receiver of the property in suit. The order empowered the Receiver to collect rent and directed him to maintain accounts and deposit them in court. It appears that Kishan Y. Lal let certain persons into possession of the property and it is not disputed that they have continued in possession throughout. Subsequently, Kishan Lal was removed on 2 -11 -1958 from the Receivership. Then, an application was made by the Appellant before the trial court praying that Kishan Lal should be directed to submit accounts and that an order be made for the ejectment of the trespassers and for possession to the Appellant. The learned Civil Judge, Agra dismissed the application. Against that order the present appeal has been filed.

(3.) ORDER 43, Rule 1(s) provides for an appeal against an order Under Rule 1 or Rule 4 of Order 40. As regards the order rejecting the relief for ejectment and possession, it is urged by the Appellant that the order falls within Sub -rule (2) of Rule 1 of Order 40. It appears to us that the contention has no force. Sub -rule (2) declares that "nothing in this rule shall authorise the court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove". The power of the court to remove any person from the possession or custody of property is set out in Clause (b) of Sub -rule (1) and it is apparently this power which Sub -rule (2) curtails. An analysis of the various clauses of Sub -rule (1) indicates that the power Under Clause (b) is only one of the powers which the court may exercise when appointing a Receiver. Under the several clauses of Sub -rule (1) the court appoints a Receiver of the property, then removes a person from the possession or custody of the property and therefore commits the property to the possession, custody or management of the Receiver. Clause (d) enables the court to confer upon the Receiver all necessary and incidental powers relating to the property. We are unable to accept the contention that Sub -rule (1) can be employed for making an order even after a person has been removed as Receiver and no successor has been appointed. Admittedly, after Kishan Lal was removed as Receiver no other person was appointed to succeed him in the office.