THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO.179 OF 2010 (PER THE HON’BLE SRI JUSTICE B.PRAKASH RAO ) DT.12.04.2010 Between: Pilli Murali Srinivas and another. ……………Appellants Vs. Dasari Srinivas and two others. ……………..Respondents. JUDGMENT: This appeal is filed by the appellants/respondents assailing the decree and order dated 22.2.2010 passed in I.A.No.2177 of 2009 in O.S.No.123 of 2009 on the file of IV Additional District Judge, Kakinada, East Godavari District, wherein and whereby the application filed by the respondents herein under Order 40 Rule-1 and Section 151 of C.P.C., seeking to appoint an Advocate Receiver over the schedule shop for administration and finalisation of the accounts till 30-06-2010 was allowed. Heard both sides. At the instance of both the learned counsel, the appeal is being disposed of. The facts of the case in brief are that in a suit filed for rendition of accounts and for dissolution of partnership between the parties. Pending suit, the said application was filed. It is stated by the learned counsel for the appellants that at the stage when the application is coming up for counter, since the learned counsel for the appellants/respondents reported no instructions and as there was no intimation, the court below treating it as no counter is filed, passed the impugned order. The impugned order passed by the court below dated 22.2.2010 reads as follows: “Whereas a petition filed by the petitioners under Order 40, Rule-1 and Section 151 C.P.C., to appoint an Advocate- Receiver to the schedule shop for administration and finalisation of the accounts till 30-06-2010, upon perusing the affidavit filed along with the petition and other material papers on record and on hearing the arguments of Sri A.Muralidhar, Advocate for petitioners and of Sri K.V.V.Chalapathi, Advocate for respondents 1 and 2 and 3rd respondent remained ex-parte in the suit, this court feels that it is just and necessary to appoint an Advocate- Commissioner. Hence, you are hereby appointed as Commissioner to supervise the business carried on by the respondent No.1 at S.B.Wines at A.Annavaram of Sankhavaram Mandal. You should file report within one month. You should only supervise the business. You should not interfere with the business. Your fee is fixed at Rs.5,000/- payable by the petitioners. You are directed to give notice to both the parties before executing the warrant.” On a bare reading of the order passed by the court below it is seen that it is bereft of any reason as to the categorical finding. It is now well settled that even though no counter is filed, if the court is satisfied that the ingredients of Order 40 Rule-1 C.P.C., are made out, it can appoint a Receiver. Either way there is no finding or proper consideration. In the circumstances, we are of the view that the matter needs to be considered afresh giving notice to both parties. Hence, the order dated 22.02.2010 passed in I.A.No.2177 of 2009 on the file of IV Additional District Judge, East Godavari, Kakinada is set aside, directing the appellants/respondents to file a counter within a period of one week from today. On filing such an application, the court below is directed to pass appropriate orders within a period of four weeks thereafter. The appeal is accordingly disposed of. No costs. ________________ B.PRAKASH RAO J., _______________ R.KANTHA RAO J., Dt.12.04.2010 tjs.