NAGINA SINGH Vs. SHEOJOTI KUER

JUDGEMENT

(1.) In this appeal defendants Nos. 7 to 9 assail validity of an order dated 7-5-1987 rejecting their petition filed against appointment of a receiver.

(2.) It appears that respondents Nos. 1 and 2 filed the suit in question for partition of their shares in Schedules II, III and IV properties of their plaint. The plaint was admitted on 29-11-1985 and the notices were issued to the defendants on 10-5-1986. Respondents Nos. 1 and 2 filed an application for appointment of an Advocate Commissioner Receiver for preparing a list of the disputed lands and for managing them and for directing him to get the standing crops thereon cut and divided. Notice of the said petition was directed to be issued to the defendants on 10-4-1986. The hearing of the said petition, however, was deferred because of non-service of notice on the defendants. From the record it appears that on 11-9-1986 the notices were issued under registered cover. It further appears that on 24-9-1986 the petition aforementioned was heard and 27-9-1986 was fixed for orders after noticing that no one had appeared on behalf of the defendants nor any show cause was filed. On 27-9-1986 an order was passed appointing one Vinod Kumar Singh, Advocate as Receiver with certain other directions. It further appears that the writ was received by Shri Binod Kumar Singh on 1-10-1986. On 8-10-1986 defendants Nos. 4 and 7 to 9 appeared and defendants Nos. 7 to 9 filed an application against the appointment of Receiver. Defendant No. 4 (respondent No. 6 herein) also filed an application praying to recall the order dated 30-9-1986, even though no order was passed on 30-9-1986 rather, as already stated, the order appointing Receiver was passed on 27-9-1986. In their petitions, the appellant and respondent No. 6 stated, inter alia, that they came to know of the suit and appointment of Receiver when the latter went in the village on 2-10-1986 etc.; that the defendants were not served with any notice; that they were deprived to put their case before the court; and that the continuance of the said order has caused sufficient loss and difficulty to them. Respondent No. 6 (defendant No. 4) also alleged that the plaintiffs have got defendants Nos. 7 to 9 in their collusion. Appellants Nos. 1 and 2 also filed a rejoinder dated 19-11-1986 to the petition of the respondent No. 6 denying the allegations and further alleged that they are not stranger to the family as alleged by them and that the properties in question are joint family properties. By the impugned order, the prayer of the appellants have been rejected after raising an issue as to whether the circumstances warrants just and convenient to maintain the ex parte order of appointment of Receiver or to vacate that. The court below in doing so took into account the widowhood of the respondent No. 1, respondent No. 2 being her daughter, and they being Pardanashin ladies and that they have got an excellent chance of success; and that the properties are being damaged or wasted by the defendants who are misappropriating their shares.

(3.) Mr. Akhouri Baidyanath Prasad, learned counsel appearing for respondents Nos. 1 and 2, raised a preliminary objection about the maintainability of the appeal itself allegal that the order in question was not passed under Order XL, Rule 1 of the Code of Civil Procedure (hereinafter referred to as the Code) and thus no appeal lies under Order XLIII, Rule 1(s) of the Code and this appeal is liable to be dismissed for this reason.