M PARVATHA VARDHANAMMA Vs. U VENKAYAMMA DIED

JUDGEMENT

(1.) The preliminary objection relating to the maintainability of this application for appointment of Receiver before this Court had been raised by Sri Sriramachandra Murthy, learned Counsel representing the Respondent Nos.2 to 7. The learned Counsel would contend that inasmuch as O.S. No.93 of 1979 on the file of the Senior Civil Judge at Kovvur is for partition and appeal is preferred as against the preliminary decree, the Original Court does not become functus officio and till the final decree is passed, an application of this nature shall be moved before the Original Court only and not before the appellate Court. The learned Counsel also incidentally pointed out that an application moved before the original Court for similar relief was rejected by an Order dated 6-2-2004 placing reliance on Damalanka Gangaraju v. M.Vijayalakshmi and others, 2002 (3) LS 162. The Counsel however, contended that the said Order cannot be sustained in law. The learned Counsel also had drawn the attention of this Court to Anirudha Adhikari v. Amarendra Adhikari, AIR 1988 Orissa 42, Ramchandra Jeetmal and others v. Jeetmal Ganpat Porwal and another, AIR 1962 MP 380, Chidambaram v. Pethaperumal, AIR 1937 Madras 163 and Jadunath Boy and others v. Parameswar Mullick and others, AIR 1940 PC 11.

(2.) Per contra, Sri Gudapati Venkateswara Rao, the learned Counsel representing the petitioner had drawn the attention of this Court stating that during the pendency of the suit and during earlier litigation also, the subject-matter of the suit was being put to auction every year and receiving of deposit amounts regularly and in the said circumstances, this application was rightly moved before this Court being the appellate Court for similar relief. The learned Counsel also in all fairness would maintain that in case, this Court is of the opinion that the application of this nature may have to be moved before the Court of the first instance, only liberty may be given to the petitioner to move appropriate application before the original Court itself despite the fact that already similar application had been rejected by the Court of the first instance.

(3.) Heard both the Counsel.