Salma Majhi and ors. Vs. Bija Majhi and ors. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - it is the well accepted principle that such discretion should be exercised judiciously and not arbitrarily. in that context, it is to be considered, if the party applying for appointment of receiver has an excellent chance of success in the suit, there is danger to the suit property being wasted or mis-managed or the disputed property remains uncared for being in medio and that the person applying for the appointment of receiver has a better claim over the subject matter of dispute then the person who is in wrongful possession of the same. therefore, without being satisfied about existence of relevant circumstances as noted above, order for appointment of receiver should not be passed only on the ground of no inconvenience to either of the parties.p.k. tripathy, j.1. heard.2. in this application under order 40, rule 1, cpc, plaintiff-appellants pray for appointment of receiver of the suit land measuring an area of ac. 7.91 decimals.3. on a bare reading of the provision in order 40, rule 1, cpc, it is clear that the matter relating to appointment of receiver is purely at the discretion of the court. it is the well accepted principle that such discretion should be exercised judiciously and not arbitrarily. therefore, from the facts and circumstances, available to it, a court shall consider whether it is just and convenient to appoint a receiver for the subject matter of dispute. in that context, it is to be considered, if the party applying for appointment of receiver has an excellent chance of success in the suit, there is danger to the suit property being wasted or mis-managed or the disputed property remains uncared for being in medio and that the person applying for the appointment of receiver has a better claim over the subject matter of dispute then the person who is in wrongful possession of the same. all such requirements to the extent of availability and applicability are to be considered with due reference to the pleadings and the evidence available on record.4. learned counsel for the plaintiffs/petitioners argues that appointment of receiver in this case will not be of any inconvenience to either of the parties, if the property shall be brought under receivership and every year leased to the highest bidder and that in that way the income from the suit property can be preserved in favour of the successful party in the litigation. the aforesaid argument has no backing law and equity in as much as an order of appointment of receiver will result in dispossession of the party who is in possession. therefore, without being satisfied about existence of relevant circumstances as noted above, order for appointment of receiver should not be passed only on the ground of no inconvenience to either of the parties.5. while expressing that appointment of receiver is a harshest remedy madras high court in the case of t. krishna swamy chetty v. c. rangavelli chetti, air 1955 madras 430, propounded five principles, popularly known as 'pancha sadachar' to be comprehended while considering am application for appointment or receiver. similar view is expressed by the said court in the case of muniammal v. p. m. ranganatha nayagar and anr., air 1955 madras 571. in the case of rasi dei v. bikal moharana and ors., air 1965 orissa 20, this court has also held that in a suit for partition, the party in possession should not be evicted by an order of appointment of receiver unless reasonable circumstances are made out.6. on a conspectus of the facts and circumstances put forth before this court it appears that in the concurrent impugned judgments and decrees passed by the courts below they have declined to grant a decree for partition in favour of the plaintiff-petitioner. admittedly, petitioners have neither alleged nor substantiated ground of wastage and damage of the suit property in the hands of the defendants. they have also stated nothing justifying a ground of urgency. thus, this court finds it irresistible to reject the application.accordingly, the prayer for appointment of receiver is rejected and the misc. case is dismissed.learned counsel for the appellant, prays that the appeal be listed for early hearing. therefore, deputy registrar (judicial) is to see that l.c.r. be obtained and the appeal be listed for hearing.