RUKMINBAI VITHALRAO JADHAV Vs. SHIVAJI NIVRATI CHAVAN

JUDGEMENT

(1.) The Plaintiff is Respondent No. 1 in this Revision Application and Defendant Nos. 2 to 4 are the Revision- Petitioners. Defendant No. 1 is Respondent No. 2. I have described the parties in this Revision Application as "Plaintiff and Defendants". The Plaintiff filed a suit against the Defendants for specific performance of the contract for sale in respect of the suit-land. In this very suit Plaintiff gave an application for temporary injunction and an ex-parte ad interim injunction was granted by the trial Court. On 26-10-1982, when the Defendants were to appear in the Court, Defendant Nos. 2 to 4 appeared in the Court and thev gave an application in the trial Court styling it as an application under Order 26 of the Civil Procedure Code for the appointment of Commissioner. In this application they asserted that they were in possession of the suit land since 2nd March, 1982, continuously till the order of injunction was served upon them. They contended further that they had sown the Kharip and Rabbi crops in the land and hence, they prayed for the appointment of Commissioner. The learned trial Judge directed the other side to give its say but it does not appear that the Plaintiff has given any say. On the same day, the learned trial Judge, after giving some reasons, passed the following order : "Shri V. N. Ghundre, Advocate, is appointed as Court Commis- sioner-cum-Receiver for the time being. He shall immediately proceed to the suit field and take over into possession the standing crops in the suit field. He shall auction the crops and shall deposit the amount received as price of the crops, in the court without delay. It is made clear that thereafter his appointment will not be continued until a subsequent specific order in this behalf is made. His remuneration will be 15% of the price that will be fetched by the crops in the suit field. Costs of the application to be in the costs of the cause. The order regarding permission to withdraw the amout so deposited in the Court will be subject to the order passed on the application for T. I. (Exh. 6). Issue writ accordingly."

(2.) The Plaintiff went in appeal to the District against this order and first of all, the learned Assistant Judge, who heard the appeal, granted stay of the order passed by the trial Court on 26-10-1982. This stay-order was passed on 2-11-1982. Subsequently, on 15-12-1982, the learned Assistant Judge made the stay absolute and directed that the Plaintiff, Appellant before him, should furnish security to the extent of Rs. 6,000 on or before 20th December, 1982. He further directed the trial Court to issue orders to the Receiver to handover possession of the crops to the Appellant- Plaintiff on his furnishing security as ordered by him. It is against this order, Defendant Nos. 2 to 4 have filed this Civil Revision Application.

(3.) Mr. B. M. Agrawal, appearing for the Petitioners, made a grievance before me that the learned Assistant Judge was wrong in his reasoning that simply because temporary injunction order was issued in favour of the Plaintiff the trial Court was precluded from passing any order of appointment of Commissioner-cum-Receiver. Mr. Agrawal is certainly right in his submission. An ex parte ad interim injunction is issued upon the application of a party and the other side appears and shows some cause, without detriment to the earlier orderthe Court is entitled to pass an order of appointment of Commissioner-cum-Receiver. To this extent the reasoning of the learned Assistant Judge is wrong and he could not have set aside the order of trial Court simply on this ground and he should bear this fact in his mind while disposing of this Appeal finally.