SAILENDRA NATH MUKHERJEE Vs. STEUART AND CO LTD

JUDGEMENT

(1.) These are the two miscellaneous appeals and since both of them involve the common question as to whether a Receiver should be appointed in respect of the self-same properties they have been heard together. F.M.A. No.633 of 1980 (F.M.A.T. No.2833 of 1980) is directed against an order dated September 2, 1980, passed by the learned Additional District Judge, 2nd Court, Alipore disposing of an application for appointment of a Receiver filed by the respondent in Title Appeal No.911 of 1973. F.M.A. No.561 of 1980 is directed against an order dated June 23, 1979, passed by the learned Subordinate Judge, 2nd Court, Alipore in Title Suit No.100 of 1977 thereby vacating an earlier order of appointment of Receiver at the instance of a third party petitioner before the learned Subordinate Judge.

(2.) In both the cases the subject-matter in dispute is premises Nos.37, 38 and 38/1, Panditiya Road, Calcutta. It is not in dispute that these properties belong to the estate of late C. Mackertich now represented by the Executor and Trustee, Sailendra Nath Mukherjee, the appellant in F.M.A. No.633 of 1980. Those properties were the subject-matter of two leases in favour of Messrs. Steuart and Company Limited, the respondent in the aforesaid appeal, the late C. Mackertich instituted Title Suit Nos.30 and 31 for recovery of possession of the said two lease-hold properties as against Messrs. Steuart and Company Limited and those and those suits were decreed by the trial court on September 15, 1955. On appeals Messrs. Steuart and Company Limited the decrees were set aside by the High Court but on a further appeal to the Supreme Court at the instance of the plaintiff the decrees as passed by the learned Subordinate Judge were affirmed on October 14, 1969.

(3.) In November, 1969, the judgment-debtor, Messrs. Steuart and Company Limited instituted two suits, being Title Suit Nos. 121 and 122 of 1969, inter alia, for a declaration that the judgment-debtor is the sole and absolute owner of the structures standing on the said premises and is entitled to remove the same. There was a further prayer for injunction restraining the decree-holder from interfering with the judgment-debtor's possession till the judgment-debtor is able to remove the structures, part of which was then under requisition by the State Government. In these suits the judgment-debtor obtained an injunction restraining execution of the decrees but the suits ultimately failed and were dismissed by the trial court on August 31, 1973. The judgment-debtor then preferred two appeals, being Title Appeal Nos. 911 and 912 of 1973 and therein again obtained further injunction against the decree-holder in a manner similar to the same as in the trial court. Unfortunately these two appeals had not been disposed of by the learned Judge in the Court of Appeal below for all these years so that notwithstanding a decree in his favour the decree-holder had been unable to recover possession since the year 1969. Since, however, the properties were yielding valuable income by way of rent as also recurring compensation now being paid by the State Government both totaling a sum exceeding Rs.20,000/- a month, the appellant before us who is now representing the decree-holder filed an application for appointment of a Receiver. Obviously he prayed for such income from the property restraining at the same time the decree-holder from recovering possession thereof. This, the judgment-debtor is doing notwithstanding the fact that the judgment-debtor had suffered a decree against him in a litigation fought up to the Supreme Court and notwithstanding the further fact that the suits filed by it failed as early as in the year 1973. This application for appointment of a Receiver came up for hearing before the learned Additional District Judge, 2nd Court, Alipore. The learned Additional District Judge did not go into the merits of the claim for appointment of a Receiver. In view, however, of an order made in a subsequently instituted suit referred to hereinafter in this judgment he disposed of the application for appointment of a Receiver in the light of the order which is the subject-matter of challenge now before us in F.M.A. No.633 of 1980.