MAHAMMED SAUD Vs. DR MAJ SHAIKH MAHAFOOZ

JUDGEMENT

(1.) THIS writ appeal is directed against the order dated 3.7.2009 passed by the learned Single Judge in Misc. Case No. 397 of 2009 arising out of F.A.O. No. 386 of 2007.

(2.) LEARNED Counsel for the Respondents raised a preliminary objection with regard to maintainability of the appeal. In order to determine the question as to whether this appeal is maintainable or not, it is necessary to look into the facts leading to filing of this appeal.

(3.) F .A.O. No. 386 of 2007 had been filed before this Court challenging the order dated 9.9.2005 passed by the learned Ad hoc Additional District Judge, F.T.C. No. 3, Bhubaneswar in Interim Application No. 12 of 2005 arising out of C.S. No. 492 of 2004 rejecting the application filed by the present Respondents for appointment of receiver under Order 40, Rule 1 of the Code of Civil Procedure and directing both parties to maintain detailed accounts of the suit property and produce the same in future, if required by the Court. The learned Single Judge disposed of the aforesaid appeal by order dated 6.8.2008 directing the trial court to put the property into auction between the parties fixing the off -set price not less than Rs. 50,000/ - and further directing that the highest bidder, on depositing the bid amount, shall be given in possession of the property and the said arrangement shall continue each year till disposal of the suit. In pursuance of the said order passed by the learned Single Judge, the property was put to auction by the trial court and the parties participated in the auction. Defendant No. 3 -Shaik Mahfooz, who is Respondent No. 3 in this appeal, became the highest bidder, but he failed to deposit the bid amount in court. Even though time was extended up to 29.4.2009, the said Respondent No. 3 did not deposit the amount and Plaintiff No. 1, who is Respondent No. 1 before this Court, being the next highest bidder was directed to deposit the bid amount by 14.5.2009 and become the receiver of the property in question. He deposited the bid amount on 12.5.2009 and filed a memo for being appointed as receiver of the property. The present Appellants, who are Defendants 1 and 2 along with Respondent No. 3 objected to the said prayer on the ground that Plaintiff -Respondent No. 1 cannot be given possession of the property in question as there is no such order. Before the said order dated 16.5.2009, Misc. Case No. 637 of 2008 was filed in the aforesaid disposed of appeal before this Court for modification and in the said Misc. Case, a clarification was made by this Court to the extent that the property shall include the hotel and restaurant running in the name and style of M/s. Hotel Sahara(Unit of Hotel Oasis(P) Ltd.) and, therefore the trial court in the said order dated 16.5.2009 appointed the Plaintiff -Respondent No. 1 as the receiver in respect of Hotel and restaurant as stated above. The present Appellants were directed to hand over possession of the said property to Plaintiff -Respondent No. 1. The said order of the trial court was not complied with and an application was filed by the Plaintiff -Respondent No. 1 alleging therein that though he has been appointed as receiver and the Defendant -Appellants were directed to hand over possession of the said hotel, they refused to hand over the possession for which the matter has been reported before the concerned Police Station and a prayer was made for police help to take possession of the said hotel. The petition was resisted on the ground that time till 22nd May, 2009 had been granted to take possession of the hotel and the said time had not expired. Therefore, by order dated 22.5.2009, the trial court rejected the petition as premature. On 22.5.2009, another similar application was filed by the Plaintiff -Respondent No. 1 and when the matter stood thus, Misc. Case No. 397 of 2009 was filed in this Court in the above disposed of F.A.O. and in the said Misc. Case, order was passed to provide adequate protection to the receiver appointed to take possession of the property in question. The said order is the subject matter of challenge in this appeal. Learned Counsel for the Respondents relied on a Full Bench decision of this Court reported in, 2008 OLR 725 arising out of the present case to substantiate his contention that the present appeal is not maintainable. The Full Bench in the aforesaid decision came to the following conclusions as reflected in paragraph 47 of the judgment, which is quoted below: