IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.89 of 2009 1.OSIHAR SINGH 2.Bachcha Singh Both sons of late Nagina Singh 3.Dwarika Singh, son of Daljee Singh 4.Raju Singh 5.Om Prakash Singh 6.Mohan Singh Sons of Dwarika Singh Residents of village Supauli, P.O.Pachrukhi District Siwan--------------Appellants (Defendants) Versus 1.BANIKA LAL SINGH 2.Banke Lal Singh Sons of Sarjug Singh 3.Manki Devi W/o Ram Chandra Singh 4.Krishna Singh 5.Raj Narain Singh Sons of late Ram Chandra Singh 6.Ramesh Singh All residents of village Supauli at present Itava, P.S.Pachrukhi, District Siwan—Respondents(Plaintiffs) ----------- For the appellants :M/S Ram Bilash Mahto,Manoj Kr. Singh, Brajesh Kr.Pandey For the respondents :M/S Lallan Prasad,Sudhir Ranjan. ---- 13. 12.1.2010 The present Miscellaneous Appeal has been taken up under the heading „for hearing under Order 41 Rule 11 CPC‟; however, since all the parties are before this Court and with the consent of their counsels the matter has been heard at length and is being finally disposed of at this stage itself. The miscellaneous appeal has been filed against the order dated 13.6.2008 passed by Sri Yogendra Nath Tripathi, Sub-Judge-VII, Siwan in F.D.No. 394/05 by which he has allowed the petition for appointment of receiver filed by the 2 plaintiffs-respondents in respect of the suit land and appointed one Lalan Pd.Ray,Advocate of civil courts, Siwan as a receiver. The plaintiffs had filed the Title Suit No.394 of 2005 claiming half share in the suit land on the ground that they were descendants of same ancestor as the defendants-appellants and belong to the branch of one of the brothers whereas the defendants-appellants belong to the other branch, the third branch having come to an end since the concerned brother at that stage died issueless. The defendants-appellants appeared in the suit and filed their written statement in which the claim of the respondents was denied. It was the stand taken in the written statement that the ancestor of the plaintiffs,namely, Mangroo Mahto was not a member of the family rather he had come from another village and he was working as a Khetihar Mazdoor but out of love and affection he had been given shelter by their family and for the said reason his name was recorded in the Khatian with respect to khesra nos. 391 and 393 which are homestead land along with the name of the ancestor of the defendants. It was the further case that the father of defendants Nos. 1 and 2, namely, Nagina Singh had filed Title 3 Partition Suit No. 82/1950 against Kishundeo Singh and others which was dismissed in 1952 holding that there was already a prior partition in that family several years back. F.A.No.16 of 1952 filed against the said judgment and decree was also dismissed on 4.12.1958. It was the case of the defendants-appellants that the plaintiffs‟ ancestors were neither party to the said proceeding nor they ever intervened. After hearing the parties learned Sub-Judge VIIth, Siwan allowed the suit and passed preliminary decree holding that the plaintiffs were entitled to half share in the suit land and the defendants also have only half share therein. The defendants-appellants filed F.A.No.30/2008 in this Court and by order dated 23.5.2008 while issuing the notices in the admission matter the judgment and decree dated 2.1.2008 passed in T.S.No. 394/2005 was stayed. Subsequently by order dated 1.10.2008 the said stay was vacated by this Court after hearing the respondents. In the meantime, on 4.6.2008 a petition was filed by the plaintiffs-respondents for appointment of a receiver for the suit land. In the said petition under Order 40 Rule 1 and Section 151 CPC it was stated that the 4 appointment of receiver was extremely essential because there was chance of murder and marpit, which was also clear from the documents filed on 23.5.2008 on behalf of the defendants. It was further stated therein that despite the decree in favour of the plaintiffs and their joint possession having been found, the defendants were creating obstruction in the cultivation of the land for which proceedings were taken in the local Police Station also but the defendants were not prepared to listen to anyone. For the said reason it was prayed that for the proper management of the properties and to look after it and to maintain accounts a receiver should be appointed so that the defendants were prevented from illegal activities and from harvesting the crops which has been sowed by the plaintiffs. The defendants contested the said application and, after hearing the parties, by the impugned order dated 13.6.2008 the learned Sub-Judge VIIth directed appointment of Sri Lalan Pd.Ray, Advocate as receiver for looking after the disputed property and maintaining its accounts of income and expenditure and to present the same in the court. 5 Learned counsel for the appellants submits that in view of the aforesaid history of litigation and considering the fact that no prayer was made to set aside the earlier decree passed in Title Suit No. 82/1950 the court below has seriously erred not only in passing the judgment and decree in favour of the plaintiffs- respondents but has further erred in appointing receiver for the property in question. It is submitted that there being a finding of the civil courts regarding the partition having taken place within 12-15 years prior to 1950 when the earlier suit was filed the court below could not have passed judgment and preliminary decree in favour of the plaintiffs-respondents without the earlier decree being first set aside. It is contended by learned counsel that the judgment and decree of the Partition Suit No.394/05 having been stayed by this Court by order dated 23.5.2008, it was not open to the court below to consider and pass any order of appointment of a receiver so long as the said stay was in operation. It is lastly urged by learned counsel for the appellants that the petition for appointment does not show that there was any wastage or damage 6 caused to or alienation of the property in question and the only ground taken in the application for appointment of receiver was that the defendants-appellants were creating breach of peace. It is submitted that the same cannot be a ground for appointment of receiver by the court below in the absence of any allegation or material on the record to show that any actual damage to or alienation of the property was caused or threatened. In support of his stand learned counsel for the appellants relies upon a decision of this Court in the case of Dadan Tiwary vs. Ramji Tiwary & ors.:2006(1) PLJR 238, in paragraph-6 of which it has been held as follows :- “6. The case of respondents is that appellant had already separated long back and was doing his own business. The written statement filed on behalf of the appellant in Title Suit No. 398/2000 which has been annexed with the memorandum of appeal shows that the appellant in para 13 of his written statement has admitted that he has his separate business and income and in course of business he used to reside outside the village. In last part of para-14 of written statement he has admitted that he used to pay income tax on the income earned by his individual business since 1963-64. As per the plaint of Title Suit No. 398/2000 which is also a part of annexures of memorandum of this appeal, the date of death of father of appellant is given as 26.1.91 which has not been 7 denied by the appellant. Since then, even if for the sake of argument it is assumed that property is joint, it is being managed by the respondents. For the appointment of receiver wastage, damage and alienation of property are matters which require consideration. Except vague allegation made in I.A. No. 4204/03 that respondents are attempting to grab the house of Sidhauli apart from misappropriating the entire usufructs of Surajpura and Barun and rent of Sidhauli property, nothing has been brought on record to prove these allegations and to show that what irreparable loss would be caused to appellant if his prayer for appointment of receiver is not allowed. Admittedly, the suit filed by the appellant is a partition suit. In absence of anything on record to show that there is wastage of or any damage to the suit property or there are chances of its alienation, I do not find any merit in the prayer of appellant.” Learned counsel for the respondents, on the other hand, submits that the court below has rightly appointed a receiver in view of the fact that the appellants were not prepared to accept the judgment and preliminary decree passed in the partition suit and were bent upon disturbing the respondents. It is submitted that in view of their action as enumerated in the application for appointment of receiver the court below was justified in coming to the conclusion for appointment of receiver. Learned counsel further 8 submits that the decree of the partition suit in favour of the respondents goes to show that they had succeeded in establishing a strong prima facie case in their favour and thus the court below was justified in passing the order. It is also submitted by learned counsel that the stay order passed by this Court in F.A.No.30/08 was itself only with respect to the operation of the judgment and preliminary decree and the same did not have effect of taking away the jurisdiction and power of the court to pass an order appointing a receiver. It is urged that the suit itself remains pending although further steps pursuant to the preliminary decree passed therein could not be taken, but in view of the pendency of the suit there was no bar to consider an application for appointment of receiver. In support of the said stand learned counsel relies upon a decision of this Court in the case of Smt. Lakshmi Devi vs. Rajendra Prasad Sao alias Rajendra Prasad Mandal and others: 1990(2) BLJ 307, in paragraph-6 of which the said proposition has been laid down in the following words: “6. From a bare perusal of the aforementioned provision, as also of the order dated 3.2.1981, which has been produced before me, it is clear that the court can stay merely the trial of the suit which 9 was done and thus the court had ample jurisdiction to appoint a receiver as contemplated under Order XL, Rule-1 of the Code of Civil Procedure and the refusal to entertain the petition on the ground mentioned in the impugned order is patently illegal.” Learned counsel also relies upon a Division Bench decision of the Madhya Pradesh High Court in the case of Madanlal Agarwal vs. Smt.Kamlesh Nigam : AIR 1975 MP 132, in paragraph-6 of which it has been held as follows: “6. For instance, if an appeal or a revision is pending in the appellate or the revisional Court and if one of the parties dies in the meantime and if the appellate or the revisional Court happens to pass a stay order, that would not oust the jurisdiction of the trial Court to entertain an application for substitution of legal representatives under Order 22, Rule 3 or Rule 4 of the Code of Civil Procedure. Of course, an application can as well be made in the appeal or the revision pending before the appellate or the revisional Court. Similarly, we do not see any reason why proceedings under Order 39, Rules 1 or 2 or Order 40, Rule 1 of the Code of Civil Procedure cannot be taken in the trial Court during the pendency of a stay order passed by the appellate or the revisional Court. The proceeding relating to grant of injunction or appointment of a receiver may be proceeding in the suit, but this would not be a proceeding in further trial of the suit on merits. Suppose, if a party is trying to damage the property, we do not see any reason why the party aggrieved cannot approach the trial Court for appointment of a receiver 10 or for an injunction. Similarly, if one of the parties tries to take steps which would ultimately result in defeating the decree that might be passed, we do not see any reason why the party aggrieved cannot be allowed to approach the trial Judge for an order of attachment before judgment under O. 38, R. 5 of the Code of Civil Procedure, which, although may be a proceeding in the suit, will not be a furtherance of the trial of the suit on merits, but it would only be a protective step so as to ensure that the defendant may not be able to defeat any ultimate decree that might be passed in the suit. Looked at from this point of view, we are of the opinion that during the pendency of a stay order passed by the appellate or the revisional Court, although the trial Court or the Court below may not have any jurisdiction to proceed with the trial of the suit on merits, it can certainly take such other steps which are collateral or which may be protective or which would be for the purpose of keeping the lis alive and all such steps, in our opinion, such as any application under Order 22, Rule 3 or Rule 4 of the Code of Civil Procedure or an application under Order 39, Rule 1 or Rule 2 or an application under Order 40, Rule 1 or an application under Order 38, Rule 5, would be maintainable in the trial Court in spite of such stay order.” I have considered the rival submissions of learned counsels for the parties. So far as the question of jurisdiction of the court below to pass order on an application of appointment of receiver is concerned this Court is in agreement with the submission of learned counsel for the 11 respondents. It is evident that so long as a suit remains pending before the court below it would be open to it to pass orders for the protection of the subject matter of the suit which would include a proceeding for appointment of receiver apart from issuing of temporary injunction or such other orders as may be required for the said purpose. The said proposition has been clearly laid down by this Court in Smt. Lakshmi Devi‟s case (supra) where despite the suit having been stayed under Section 10 CPC it was held by this Court that the court below had ample jurisdiction to appoint a receiver in terms of Order 40 Rule 1 CPC and the refusal to entertain the petition on account of stay was patently illegal. The same proposition has also been laid down by the Division Bench of the Madhya Pradesh High Court, with which I am in respectful agreement. Thus so far as the challenge to the jurisdiction of the court below to pass an order of the present nature appointing a receiver during the operation of the stay is concerned, the same is rejected. So far as the issue as to whether the ancestor of the respondents was or was not a member of the family of the appellants is concerned, the same is not relevant to be considered by this Court at 12 the present stage since the said issue has already been decided by the court below in its judgment and the matter is pending in the First Appeal before this Court. However, on the merits of the order appointing the receiver this Court is inclined to accept the submission of learned counsel for the appellants. The power to appoint a receiver has been held to be harsh in nature which has to be exercised only in exceptional cases, that too where the dispute relates to partition of a joint family property. Further not only a strong prima facie title to the property is to be shown, which is satisfied in the court below since the judgment and preliminary decree are in favour of the plaintiffs-respondents, but it has also to be alleged and shown that there was either actual damage or waste caused to the suit property or its alienation or threat of the same in view of the action of the party against whom the receivership is sought. From a perusal of the petition under Order 40 Rule 1 CPC filed by the plaintiffs-respondents in the court below it is evident that there is no such allegation made in the said petition. Rather the crux of the said application is that the 13 appellants were creating a situation leading to breach of peace between the parties. The same cannot be considered a sufficient ground for allowing an application for receivership. This Court in Dadan Tiwary‟s case(supra) as also in a catena of decisions has clearly held that there must be wastage, damage or alienation of property and only on such consideration a receiver can be appointed. The respondents have hopelessly failed to either allege or prove the said fact. In the above circumstances, the appeal is allowed. The order dated 13.6.2008 is set aside. However, in the facts and circumstances of the case there shall be no order as to costs. (Ramesh Kumar Datta,J.) spal/