aK'.fe-'s»^ST' ^^ 1 IN THE HIGH COURT OF JUDICATURE AT BILASPUR MISC. APPEAL N0 ^T-- ^p ^007 APPELLANT: (Defendant No.l) ..^.A^ ..-•••^•v1'^ .^';^ ^*-- Gulabdas, aged about 49 years, son of Shri Mangaldas, Occupation-Potice Sub-Inspector, Government of Chhattisgarh, resident of Village Bhainsatara, Tehsil Rajim, bistrict Raipur. vs x RESPOJMOENTS: <^1. Bhawani Das, aged about 59 (Plaintiff) years, son of Late Jalam Das, ./ Caste-Panika, Occupation- C?^ /^s .<?» Agriculturist, resident of ^.y ,<^"^ ^" ;-"' Village Satra, Kondkera, Village Navagaon, bistrict Dhamtari & Agriculturist, r befendant No.2 Beltukri, Tehsil Rajim, bistrict Raipur. 2. State of Chhattisgarh, through the Collector, Raipur, Oistrict Raipur (CG). ^' APPEAL UNDER ORDER 43 RULE Ks) OF THE CQbE OF CIVIL PROCEbURE. 1908 |I.GH_COURT OF CHHATTISGARH AT BILASPUR MAJ^Q,77/2007 APPELLAm1 Defendant Mo,l Gi-Uabdas ^ RESPOHDENTS P2ai2it5ffs VERSUS Bhawani Das and aiiother QRDER Post for pronouncement of order on '2^/09/2011 Sd/- . N. K, Agarwal ^* Jf .-•;i /&. t ^B^.i \^y HIGH COURT OF CHHATTISGARHAT BILASPUR Misc. Aooeal No. 77 of 2007 APPELLANTS DEFENDANTNo.l Gulabdas Versus RESPONDENTS Bhawani Das and another. PLAINTIFFS APPEAL UNDER ORDER 43 RULE 1 (s) OF THE CODE OF CTVTL PROCEDURE, 1908 SB:- Hon. Shri N.K. Agarwal, J. PRESENT:- Shri Pramod Verma, Sr. Adv. with Shri Raghavendra Verma for the appellant. Shri K.K.Singh for respondent No.l. 0 RD E R (Delivered onz°?-9-20H ) Being aggrieved and dissatisned with the order dated 03.12.2007 passed in Civil Suit No. 3-A/2007 by the Additional District Judge, Gariaband whereby application Under Order 40 Rule 1 of the C.P.C. filed by the plaintiff - Bhawani Das has been allowed, the instant miscellaneous appeal has been filed. 2. Facts of the case in brief are as under: i) Suit property was owned and possessed by one Hira Das. After his death, his three wives Maina Bai, Mantora Bai and Kachara Bai inherited the suit property in equal proportion i.e. one-third each. According to plaintiff, he is son of late Pataiya Bai, sister of late Hira Das. Maina Bai and Mantora Bai executed the will deed in his favour and after death of Pataiya Bai, he succeeded to her share. .^sr^ ^f'""^ "%, i t®Sa.I '^. ^^-^—^'^: ii) After death of Hira Das on 26th May, 1973, dispute ai^ose between Maina Bai, Mantora Bai and Mangal Das, Triveni Bai and Kachara Bai. The Civil Suit was decide in favour of Maina Bai and Mantora Bai declaring Maina Bai, Mantora Bai and Kachara Bai have inherited suit property left by late Hira Das in equal proportion and Mangal Das has no right. The appeal preferred thereagainst was also dismissed. During the pendency of the second appeal, Maina Bai and Mantora Bai have died and without impleading plaintiff or her legal representatives, a compromise decree has been procured by Mangal Das. iii) Dispute arose between plaintiff and Gulab Das with regard to possession of suit land. The land was attached under Section 145 ofthe Cr.P.C. iv) Thereagainst, the revision preferred was allowed on the basis of decree passed in second appeal. v) According to the plaintiff, he is the absolute owner of the suit land and in alternative defendeint at the most can be held to be entitled for l/3rd share of the suit property and not more than that. Along with the suit, application for appointment of receiver was also filed. vi) The learned trial Court vide order impugned allowed respondents' application for appointment of receiver. Hence, this miscellaneous appeal. 3. Shri Pramod Verma, learned Senior Counsel with Shri Raghavendra Verma, for the appellant, would submit: indisputably, .the appellant is in possession of the suit property and without proving ingredients of order 40 of the C.P.C. for appointment of receiver, the trial Court, without X^S.:. .. .1 applying its mind, allowed the application and appointed the receiver. Placing reliance on a decision of the Supreme Court in the case of S. Saleetna Bi v. S. Pyari Begum and anofher, (2000) 9 SCC 560, Shri Verma would submit: appellant is in physical possession of the property in dispute; the receiver can only be appointed when it is just and convenient and also when there is a prima facie case in favour of the plaintiff-respondent and the case calls for taking of urgent measure like appointment of a receiver. The trial Court without going into these questions, appointed the receiver, which is not legally justified and the order deserves to be set aside. 4. On the other hand, Shri K.K.Singh, learned counsel appearing for the respondent, placing reliance upon a judgment of the High Court of Calcutta in the case of Bhaskar Aditya vs. Minati Majuvndar and others, AIR 2003 Calcutta 178, would submit: Order 40 Rule 1 of the C.P.C. empowers the Court to appoint a receiver when it is just and convenient. It has not prescribed any criteria for the purpose of appointment of receiver. The Court can appoint receiver whenever it appears to the Court to be just and convenient. 5. I have heard learned counsel for the parties and perused the order impugned. 6. A bare perusal of the plaint averments, it cannot be said that the plaintiff has no prima facie case. At the same time, possession of the appellant is an established fact inasmuch as this Court,in Second Appeal No. 348 of 1998 has declared appellant's possession over the suit property. 7. The Supreme Court, in the case of S. Saleema Bi v. S. Pyari Begum and another (supra) has held, the receiver can only be appointed when it is just and convenient and also when there is prima facie case in favour of the plaintiff and the case calls for taking urgent measure like appointment of a receiver. 8. Under Order 40 Rule 1 of the C.P.C., the Court has power to appoint a receiver when it appears to the Court to be just and convenient. In that event, the Court can remove any person from possession or custody of the property and confers such power to the receiver as it deems appropriate. It is well known that the act of taking property out of the hands of one and putting the same under the orders of the Court, should only be done to prevent manifest wrong or to prevent great danger to the property. The appointment of a receiver is one of harshest remedies under the law. It has to be exercised in extreme cases. In the instant case, appellant's possession over the suit property is not in dispute. 9. Considering over all circumstances of the case, in the considered opinion of this Court, the trial Court, without addressing itself to the question whether or not urgent measure like appointment of a receiver is necessary in the facts and circumstances of the case, has appointed receiver in the case vide order impugned. I, therefore, find that the appointment ofthe receiver was not legallyjustified. 10. For the foregoing, the appeal is allowed and the order impugned is set aside. However, in view of the fact that the appellant is j.n possession of the suit property under compromise decree passed in S.A.No.348/1998, he would obviously act as a custodia legis, pending the suit, as receiver N. on behalf of the Court but any right claimed by him will be subject to the result in the suit. 11. In equity, the appellant is also directed not to alienate or create any third party interest in the suit property, to maintain the accounts of profits accrued therefrom and submit the accounts with the Court below, till decision of the suit. 12. The trial Court is expected to decide the suit as early as possible, preferably, within a period of 9 months from the date of receipt of copy of this order. 13. No order as to costs. Sd/- , N. K. Agarwal Judge