CHOCKALINGAM PILLAI Vs. PKPSPICHAPPA CHETTIAR

JUDGEMENT

(1.) This appeal is against the order of the Additional Subordinate Judge of Ramnad at Madura appointing a Receiver in respect of the A Schedule properties in the suit which, according to the plaintiff's case, the defendants 1 to 3 had contracted to sell to him, and of the B Schedule properties in the plaint which, according to the plaintiff, the defendants 1 to 3 had agreed to mortgage to him by simple mortgage. The suit is a suit for, specific performance inter alia of this contract to sell and to execute a simple mortgage. Mr. T.K. Ramachandrier for the appellant contends that at any rate so far as the B Schedule properties are concerned, it is not open to the lower Court to appoint a Receiver, the point being that the lower Court cannot by way of Receivership do what it would not be entitled to do even by way of decree. At the highest, the plaintiff is entitled, if he succeeds, only to a simple mortgage on these properties, and having obtained this simple mortgage he could not immediately sue for possession. He is not entitled on the simple mortgage to possession. The most he could do is to enforce a sale on foot of the mortgage. We think that this argument is sound and that the lower Court was not justified in appointing a Receiver so far as the B Schedule properties are concerned.

(2.) So far as the A Schedule properties are concerned, Mr. T.B. Ramachandrier has also argued that the lower Court has exercised its discretion improperly in appointing a Receiver in respect of properties of which the plaintiff, in the first instance at least, is only asking for specific performance of sale and not for possession. Subsequently, however, the plaintiff was allowed to amend his plaint and put forward a prayer for possession of these properties also. A Civil Revision Petition has been filed here against this amendment of the plaint and we deal with this now. Various rulings of this Court have been quoted to us, as also Form 47 of the first Schedule to the Civil Procedure Code, which set out that it is open to the Court in a suit for specific performance of sale, also to give a decree for possession. We are not therefore prepared to say that the lower Court exercised its discretion wrongly in permitting the amendment of the plaint and allowing the plaintiff to add a prayer for possession of the A Schedule properties. That being so, the plaintiff's prayer for possession will stand, and in these circumstances we do not think we can say the lower Court exercised its discretion wrongly when it appointed a Receiver in respect of these properties, a decree for possession of which the plaintiff would be entitled to if he succeeds.

(3.) In these circumstances we dismiss C.R. P. No. 208 of 1925. No order as to costs.