Ram Ekbali Singh and anr. Vs. Sheo Pujan Singh and ors. - Court Judgment

Excerpt:
application for - filed in suit for partition--property in question standing in name of defendants who assert that properties were their own property and not ancestral property--plaintiff could not show that he has a chance of success and in case receiver is not appointed, it will cause imminent danger of deprivation of his right--trial court, thus, rightly refused to allow application--opinion of trial court in this regard must be given weight--principles for appointment of receiver--discussed. - - the well accepted general principle is that a receiver should be appointed where it is just and convenient. it is well settled that a receiver should not be appointed unless the party has an excellent chance of succeeding in the suit; it is equally well settled that the appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril. appointment of receiver must not be mere weapon of coersion and the court should not exercise this discretionary power in the absence of a strong case. 1. the plaintiffs-appellantsapplication for appointment of receiver in a suit for partition having been dismissed by the subordinate judge-1, siwan, the appellants seek an order by this court for appointment of receiver. 2. admittedly, a small portion of suit property only stands jointly in the name of appellants-defendants-respondents nos. 1 to 5 situated in the village dumrakala in the district of siwan. the appellants are more interested in appointment of receiver in respect of properties situated in west bengal and other properties which are claimed to be ancestral properties of the plaintiffs and defendants-respondents nos. i and 6 situated in the district of west dinajpur in west bengal. theproperties standing in the name of respondents nos. 1 and 6 in west bengal were mentioned inschedules 3 to 5 of the plaint and it is claimed by the respondents to be their exclusive property. the contesting defendants had no objection for the partition of the properties mentioned in schedule nos. 1 and 2 situated in siwan. it is stated that defendant no. 6 is not a member of the joint family, who has 1/2 share in schedules 3 to 5 properties. it is alleged by respondents-defendants- 1st set that defendant no. 6 had transferred his 1/2 share in the property mentioned in schedule no. 3 by registered sale deed in favour of defendants-1st set. 3. the question for consideration is whether the plaintiffs-appellants are entitled to grant of equitable relief for appointment of receiver when their interest in schedule nos. 3 to 5 properties is seriously in dispute. there is no averment that the plaintiffs ever claimed or were given any share from the usufructs of properties situated in west bengal standing in the name of defendants nos. 1 and 6 jointly. the court at first instance did not find it expedient having regard to the circumstances of the case, that a receiver should be appointed. as held by this court in kamal chaudhary v. rajendra chaudhary, air 1976 patna 366, that the opinion of the trial court in the matter of appointment of receiver is of great weight and a party, who, in appeal, attacks the exercise of that discretion, should show that the discretion has been improperly exercised. 4. in nihalchand l. jai narain v. ram niwas munna lal, air 1968 punj and har 523, it has been held that a discretion exercised by the trial court in the matter of appointment of a receiver after considering the facts of the case ought not to be interfered with in appeal unless it is shown that it was improperly exercised or that the determination was contrary to law. the well accepted general principle is that a receiver should be appointed where it is just and convenient. as to whether in a particular case it is just and convenient to do so the question would have to be determinedon the particular facts of the case. it is well settled that a receiver should not be appointed unless the party has an excellent chance of succeeding in the suit; the plaintiff himself has shown that there was some emergency or danger or loss that may be caused to the right involved in the suit; that an order appointing a receiver should not be made if it has the effect of depriving a defendant of de facto possession. however, the position would be different if the property is shown to be in medio that is to say in the enjoyment of no one and that the court should always look into the conduct of the parties who seek for the appointment of a receiver. it is equally well settled that the appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril. 5. as held by orissa high court in rasi devi v. bikal maharana, air 1965 orissa 20, the high prerogative act of taking property out of the hands of one and putting it in pound under the order of the judge ought not to be taken except to prevent manifest wrong imminently impending. a receiver is to be appointed only in a clear case and where there is necessity or occasion for the appointment. appointment of receiver must not be mere weapon of coersion and the court should not exercise this discretionary power in the absence of a strong case. 6. the glaring facts of this case are that a largepart of the properties stand in the name of defendants nos. 1 and 6. the plaintiffs' case is that the suit property was purchased by the former ancestor by the joint family fund long long back. on the other hand the contesting defendants placed facts to show that it was not so rather it was exclusive property purchased from separate earnings and the circumstances have been highlighted in the rejoinder and written statement filed by the defendants. no doubt the court can appoint receiver in a particular suit by consent, in other cases special circumstances must be proved such as a prima facie title and danger of waste. (woodroffe's law of receivers 108) 7. considering the facts of the case, i am of the opinion that the appellants have not been able to satisfy that the discretion exercised by the trial court in refusing to appoint receiver was improper.this appeal, therefore, must be turned down. this appeal is dismissed but without costs. the trial court is directed to expedite the hearing of thesuit.

Judgment:

1. The plaintiffs-appellants

application for appointment of receiver in a suit for partition having been dismissed by the Subordinate Judge-1, Siwan, the appellants seek an order by this Court for appointment of receiver.

2. Admittedly, a small portion of suit property only stands jointly in the name of appellants-

defendants-respondents Nos. 1 to 5 situated in the village Dumrakala in the district of Siwan. The appellants are more interested in appointment of receiver in respect of properties situated in West Bengal and other properties which are claimed to be ancestral properties of the plaintiffs and defendants-respondents Nos. I and 6 situated in the district of West Dinajpur in West Bengal. The

properties standing in the name of respondents Nos. 1 and 6 in West Bengal were mentioned in

Schedules 3 to 5 of the plaint and it is claimed by the respondents to be their exclusive property. The contesting defendants had no objection for the partition of the properties mentioned in Schedule Nos. 1 and 2 situated in Siwan. It is stated that defendant No. 6 is not a member of the joint family, who has 1/2 share in Schedules 3 to 5 properties. It is alleged by respondents-defendants- 1st set that defendant No. 6 had transferred his 1/2 share in the property mentioned in Schedule No. 3 by registered sale deed in favour of defendants-1st set.

3. The question for consideration is whether the plaintiffs-appellants are entitled to grant of equitable relief for appointment of receiver when their interest in Schedule Nos. 3 to 5 properties is seriously in dispute. There is no averment that the plaintiffs ever claimed or were given any share from the usufructs of properties situated in West Bengal standing in the name of defendants Nos. 1 and 6 jointly. The court at first instance did not find it expedient having regard to the circumstances of the case, that a receiver should be appointed. As held by this Court in Kamal Chaudhary v. Rajendra Chaudhary, AIR 1976 Patna 366, that the opinion of the trial Court in the matter of appointment of receiver is of great weight and a party, who, in appeal, attacks the exercise of that discretion, should show that the discretion has been improperly exercised.

4. In Nihalchand L. Jai Narain v. Ram Niwas Munna Lal, AIR 1968 Punj and Har 523, it has been held that a discretion exercised by the trial Court in the matter of appointment of a receiver after considering the facts of the case ought not to be interfered with in appeal unless it is shown that it was improperly exercised or that the determination was contrary to law. The well accepted general principle is that a receiver should be appointed where it is just and convenient. As to whether in a particular case it is just and convenient to do so the question would have to be determined

on the particular facts of the case. It is well settled that a receiver should not be appointed unless the party has an excellent chance of succeeding in the suit; the plaintiff himself has shown that there was some emergency or danger or loss that may be caused to the right involved in the suit; that an order appointing a receiver should not be made if it has the effect of depriving a defendant of de facto possession. However, the position would be different if the property is shown to be in medio that is to say in the enjoyment of no one and that the Court should always look into the conduct of the parties who seek for the appointment of a receiver. It is equally well settled that the appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril.

5. As held by Orissa High Court in Rasi Devi v. Bikal Maharana, AIR 1965 Orissa 20, the high prerogative act of taking property out of the hands of one and putting it in pound under the order of the Judge ought not to be taken except to prevent manifest wrong imminently impending. A receiver is to be appointed only in a clear case and where there is necessity or occasion for the appointment. Appointment of receiver must not be mere weapon of coersion and the Court should not exercise this discretionary power in the absence of a strong case.

6. The glaring facts of this case are that a large

part of the properties stand in the name of defendants Nos. 1 and 6. The plaintiffs' case is that the suit property was purchased by the former ancestor by the joint family fund long long back. On the other hand the contesting defendants placed facts to show that it was not so rather it was exclusive property purchased from separate earnings and the circumstances have been highlighted in the rejoinder and written statement filed by the defendants. No doubt the Court can appoint receiver in a particular suit by consent, in other cases special circumstances must be proved such as a prima facie title and danger of waste. (Woodroffe's Law of Receivers 108)

7. Considering the facts of the case, I am of the opinion that the appellants have not been able to satisfy that the discretion exercised by the trial Court in refusing to appoint receiver was improper.

This appeal, therefore, must be turned down. This appeal is dismissed but without costs. The trial Court is directed to expedite the hearing of the

suit.