DAMALANKA GANGARAJU Vs. MANDIPATI VIJAYALAKSHMI

JUDGEMENT

(1.) JUDGMENT :This appeal is filed against the Order dated 15-2-2002 in IA No.554 of 2001 in OS No.7 of 1996 on the file of Senior Civil Judge, Pithapuram.

(2.) The first respondent herein filed the suit for partition and obtained a preliminary decree for partition regarding her share. The appellant is her father. He filed an appeal in AS No.713 of 2000 on the file of this Court against the preliminary decree obtained by the first respondent herein. In that appeal, this Court granted stay of passing of final decree alone in the said civil suit. The said order was passed on 7-4-2000. The said order is still in force. During the pendency of the appeal, the first respondent filed a petition requesting the Trial Court to determine past mesne profits. The said petition is pending in the Trial Court. The first respondent filed another petition under Order XL Rule I CPC, requesting the Trial Court to appoint a Receiver to take possession of plant 'A' schedule properties and manage the same. The appellant herein opposed the said application. Inter alia he contended that when the appeal over the preliminary decree is pending before the High Court, the Trial Court cannot entertain the said application under Order XL Rule 1 CPC. The Trial Court in para 8 of its order held that when the first respondent therein is in admitted possession of the property being kartha of the joint family and when there was no waste or damage to the said property, it is not proper to appoint a Receiver to take possession of the petition schedule property. However, it further observed that when the first respondent herein obtained a preliminary decree for partition of her l/3rd share, she cannot be asked to wait till the disposal or the result of the first appeal and second appeal, etc., and when the first respondent therein is in possession and realizing income, he is bound to pay some amount to the petitioner therein. Accordingly the Trial Court directed the first respondent therein to deposit a sum of Rs.3,500-00 into Court towards the profits of the .share of the petitioner therein for the year 2001-2002 on or before 26-2-2002 and failing which a Receiver will be appointed to take possession of the schedule land. Aggrieved by that order of the Trial Court, the first respondent therein preferred the present appeal.

(3.) Regarding the jurisdiction of the Trial Court to entertain the application for the appointment of the Receiver, the Trial Court merely stated that previously two similar petitions were filed and similar orders were passed and the present appellant did not object for the same. The circumstance that appellant herein did not oppose the earlier application does not itself vest the jurisdiction in the Trial Court to entertain any application if it has no jurisdiction to entertain the said application.