MADHU LAL Vs. RAMJI DAS CHIRONJI LAL

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff from an order of the District Judge, Shivpuri refusing to appoint a receiver of the Defendant -Respondent's properties in the Plaintiff's suit for the recovery of Rs. 13,527/11/6 on the basis of an account stated. The Defendant is resisting the suit inter alia on the ground that it is incompetent for the reason that there was a composition between him and his creditors including the Plaintiff -Appellant about their debts; that the debt which the Plaintiff seeks to recover was included in the composition under which the Plaintiff and the other creditors of the Defendant had the right to sell the Defendant's properties and realise their debt and that therefore the Plaintiff was (SIC) entitled to file this suit on the original ca(SIC) of action. After the institution of the suit the Plaintiff presented on 26 -3 -46 a consolidated application Under Sections 433, 447, 451, Gwalior Code of Civil Procedure Samvat 1966 for an attachment before judgment of the Defendant's properties and in the alternative for the appointment of a receiver for the collection of the rents and prolits of the Defendant's properties. Before the District Judge, the Plaintiff did not press the application in so far as it related to an order of attachment before judgment. He however, pressed for the appointment of a receiver on the ground that the Defendant -Respondent had first agreed to hand over his properties to his creditors for the realisation of their debts but later on he resiled from the agreement; that the Plaintiff had therefore an equitable interest in these properties, that the Defendant was heavily indebted and was putting obstacles in the Plaintiff's suit by raising all sorts of objections and thus delaying the proceedings; that in the meantime he was appropriating the rents and profits and paying nothing to the Plaintiff and that if a receiver was appointed for the collection of the rents and profits, there would be some assets for the satisfaction of any decree that the Plaintiff might obtain against the Defendant. The learned District Judge rejected the application on the short ground that Under Section 451, Gwalior Code of Civil Procedure, a receiver could be appointed of any property only if it was the subject -matter of the suit.

(2.) IN this appeal learned Counsel for the Appellant contended that if in the present case no receiver could be appointed Under Section 451, Gwalior Code of Civil Procedure, the trial Judge should have considered the question of the appointment of a receiver in the exercise of its inherent powers and that in any case Under Order 40 Rule 1, Code of Civil Procedure, 1908, which is now in force in the State, the appointment of a receiver in the present case would be just and convenient in view of all the, circumstances of the case. On behalf of the Respondent Mr. Mungre does not dispute that the matter is now governed by Order 40 Rule 1 of the Code. But he says that in this suit of the Plaintiff which is a suit for money and in which the Plaintiff does not claim any right to be paid out of any particular property of the Defendant, there is no equity at all in favour of the Plaintiff' and no receiver can, therefore, be appointed.

(3.) THE question, therefore, in the present vase is whether the appointment of a receiver (SIC) necessary for the protection of some rights of Plaintiff -Appellant. The Plaintiff's suit is for the recovery of moneys on an account stated. Learned Counsel for the Appellant admits that in this suit, the Plaintiff does not claim a specific charge on any property in respect of his debt. He does not claim any right to be paid out of any particular property. It is true that the Respondent has pleaded that the Plaintiff should have sued on the basis of a composition which gave to the Plaintiff a right to realise his debt, from certain properties of the Defendant and that the Plaintiff's suit on the original cause of action is not maintainable. But because of this pleading of the Defendant, the Plaintiff -Appellant cannot be said to have a right in the present suit of realising his debt from any particular property. If the Appellant had a right to be paid out of a particular fund or property, he could in equity obtain protection to prevent that property or fund from being dissipated so as to defeat his rights. But there can be no such equity in favour of the Plaintiff -Appellant, when in the present suit he does not rely on any agreement between him and the Defendant that he should be paid out of a particular fund or property. The appointment of a receiver Under Order 40 Ruel 1 is essentially on equitable grounds and if a simple contract creditor fails to establish a special equity in favour of the appointment of a receiver, there can be no justification for the Court to appoint a receiver.