ANIRUDHA Vs. AMARENDRA

JUDGEMENT

(1.) The two questions that arise for consideration in this appeal are : (i) whether the trial court had jurisdiction to entertain and deal with the application under O.40, R.1, Civil Procedure Code filed by the respondent, and (ii) if the prayer in the application was hit by the principle of res judicata. The first point not having been raised before the trial court has not been answered by him. The second one has been answered in the negative.

(2.) The gist of the relevant facts leading to the present proceeding may be stated thus : The respondent filed Title Suit No. 44 of 1980 in the Court of the Subordinate Judge, Baripada for partition of the suit properties and for allotment of due share to him. The suit was contested by the appellant, mainly on the ground that there was a previous partition of the family properties between the parties and therefore the suit was not maintainable. In the suit a preliminary decree was passed by the trial court awarding to the plaintiff respondent 1/3rd share in the properties in schedules 'E' and 'F' to the plaint. It is stated at the bar that no appeal has been filed against the said preliminary decree, and also no proceeding for drawing up a final decree has yet been initiated. During pendency of the suit the respondent filed an application under O.40 R.1, C.P.C. for appointment of a receiver which was rejected by the trial court on 16-11-1981. Again on 28-10-83 another application for the self same prayer was filed by the respondent before the court. The application had not been disposed of till 25-11-83 when the preliminary decree was passed. It is stated at the bar that both the parties were heard on the application at the time of placing their arguments in the suit and the application was disposed of by the impugned order on 28-11-1983. The trial court on consideration of the facts and circumstances of the case while declining to appoint a receiver of the properties under Schedules 'E' and 'F' to the plaint, directed the defendant appellant to furnish accounts of the income and expenditure of the usufructs from the properties. Being aggrieved by the said order, the defendant No. 1 has filed this appeal challenging the said order mainly on the two grounds noticed earlier.

(3.) The consideration that appears to have weighed with the trial court while passing the impugned under is that the respondent has been found entitled to 1/3rd share in the properties in question and since he usually remains absent from the village in connection with his service in the Railways and admittedly the appellant is in possession of the entire properties, it is appropriate that he should render accounts of income and expenditure in respect of the same.