LAL NARAIN SHARMA Vs. JANKI DEVI

JUDGEMENT

(1.) THIS Miscellaneous Appeal has been preferred against the order dated 14.9.95 passed by the 1st Additional District Judge, Muzaffarpur, in Misc. Appeal No. 32 of 1995, whereby the learned Additional District Judge has been pleased to allow the miscellaneous appeal and set aside the order of appointment of Receiver and thereafter remanded back the matter for appointment of Receiver to the Court of learned Sub -Judge Vlllth, Muzaffarpur, for giving fresh finding after hearing the counsel of both the parties.

(2.) BRIEF facts of the case is that the plaintiffs -respondents filed Partition Suit No. 162 of 1986 seeking relief of partition of their half share in the suit property on the ground that the suit properties was acquired from the earning of the joint family. The suit was contested by the defendants - appellants on the ground that the properties in dispute were self acquired property. However, the plaintiffs ' suit for partition was decreed by judgment dated 14.12.94. Thereafter, a petition was filed on behalf of the plaintiffs on 1.6.95 for appointment of a survey knowing Pleader Commissioner for preparing separate Takhta and another petition was filed for appointment of Receiver. The matter was heard by the trial court and the trial court by order dated 15.6.95 allowed the prayer of the plaintiffs for appointment of Receiver with respect to the suit properties. The said order was challenged by the appellants which was heard by the 1st Additional District Judge, Muzaffarpur, who by order dated 14.9.95 allowed the appeal and set aside the order of appointment of Receiver. The learned Additional District Judge after setting aside the order remanded the matter back to the trial Court for fresh hearing.

(3.) IT has been submitted by the learned Advocate of the appellants that before the learned Additional District Judge there was sufficient material for finally disposing of the question of appointment of Receiver. He submitted that for deciding the point whether the appointment of Receiver is essential or not, the Court has to consider whether there is any danger of wastage, damage or apprehension of alienation of suit property from the side of any party and merely on vague allegation that there is apprehension of misappropriation of the property the application for appointment of Receiver cannot be allowed. Learned Advocate of the appellants submitted that before the trial court as well as before the appellate court there was no sufficient material to come to the conclusion that there was any danger of wastage or damage to the suit property or there was any apprehension of alienation of the suit property from any party and, as such, the order of appointment of Receiver by the trial court was bad in law and, so, the appellate court should have simply set aside the said order instead of remanding the matter back to the trial court for fresh consideration.