IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.RAJA O.S.A.No.42 of 2010 and M.P.No.1 of 2010 Haji A.M.Hidayathullah .. Appellant Vs. 1. Hasbullah Idrooze 2. M.H.Zawahirullah 3. Fathima Azees 4. Johara Safrin 5. Gowdhul Faiesha (Died) .... Respondents The appeal has been preferred under Order 36 Rule 11 of O.S.Rules read with under Clause 15 of Letters Patent against the orders passed in O.A.No.634 of 2009 in C.S.No.735 of 2005 dated 21.8.2009. For Appellant : Mr.Ck.Chandra Raj M/s.Raj & Raj Associates For Respondents : Mr.N.A.Nizar Ahmed J U D G M E N T (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This intra-court appeal challenges an order of the learned single Judge of this Court appointing an Advocate Receiver for collection of rent from the tenants occupying the suit property. https://hcservices.ecourts.gov.in/hcservices/ 2. The Court heard the learned counsel for the appellant and looked into the materials available including the order under challenge. 3. It was a suit for partition filed by the respondents seeking division of the suit property. Pending the suit, originally an application was filed in Application No.1134 of 2005 seeking appointment of the second plaintiff as the party receiver to collect the rents. There was a direction given to the first defendant to deposit a sum of Rs.10,000/- every month to the credit of the suit from the rental income and the parties are at liberty to approach the Court if there was any need. The said order made by the learned single Judge was challenged in O.S.A.No.235 of 2006, wherein, after enquiry, an order came to be passed issuing a direction to the first defendant to make payment of the arrears calculated at Rs.10,000/- per month from January, 2006. The said arrears were to be deposited to the credit of C.S.No.735/2005 within a period of eight weeks therefrom and the remaining arrears to be invested in the fixed deposit, to be renewed periodically in the recurring deposit and the same was to be invested in the fixed deposit once in a year. After passing of the order, the first defendant did not comply the same. Under such circumstances, the instant application came to be filed seeking appointed of an Advocate Receiver. The learned single Judge, after giving opportunity to the respondents in that application, namely defendants made an order which runs as follows: "10. But , however, in the light of the above facts, it is just and convenient that an Advocate Receiver is to be appointed for collecting rents from the suit property in old Door Nos. 177, 135, New Door No.180 measuring 2538 sq.ft. situated in Anna Pillai Street, George Town, Chennai and to deposit the rents in a separate account and pay to the applicants a sum of Rs.10,000/- per month from out of the rental income and deposit the balance into a separate bank account after adjusting the expenditures incurred in doing so. He shall maintain proper accounts and submit to this Court once in six months. 11. The tenants in the suit property are hereby directed to entrust the rents to the Advocate Commissioner with effect from 01.09.2009 onwards. The first respondent is also directed to part with the rental records to the custody of the Advocate Receiver. 12. Mr.Balan Haridoss, Advocate, No.J-51, Anna Nagar, Chennai – 600 040 is hereby appointed as an Advocate Receiver for the above stated purpose. His remuneration is fixed at Rs.3000/- (Rupees three https://hcservices.ecourts.gov.in/hcservices/ thousand only) and he is entitled to get refund of the expenses involved in managing the property. 13. Accordingly, O.A.No.634 of 2009 is allowed. O.A.No.570 of 2009 stands dismissed. No costs." Aggrieved over the same, this appeal has been brought forth. 4. After hearing the learned counsel for the appellant, the Court is of the considered opinion that the order of the learned single Judge could not be disturbed since nothing remains factually or legally in favour of the appellant herein. 5. It was a suit for partition. The defendant has all along been in possession and collecting the rents. Originally, the plaintiff filed an application for appointment of party receiver. The learned single Judge was not inclined to appoint a party receiver but permitted the defendant to make collection of rental and issued certain directions. Not satisfied with the same, the plaintiffs took it on appeal. Even in the said appeal, the order of the learned single Judge, allowing the first defendant to continue the collection of rents was not disturbed but there was a direction to deposit the rental arrears with certain other directions also. Admittedly, these directions were not complied with by the first defendant. Under such circumstances, the instant application has arisen. 6. Needless to say, in a given case like this, when a party is appointed as a Receiver in respect of a property covered under the suit for partition, duty is cast upon him to make proper collection, maintain the accounts and also proper maintenance of the property. The Apex Court had an occasion to consider such a situation and had given its judgment in Anthony C.Leo v. Nandlal Bal Krishnan reported in (1996)11 SCC 376 and also in Kasturi Bai and others Vs. Anguri Chaudhary reported in (2001)3 SCC 176 which are actually incorporated by the learned single Judge in his order. It is a case where there was non-compliance of the earlier orders of this Court which led to the necessity of appointment of an Advocate Receiver and there were warranting circumstances to do so. Therefore, the appellant, who was allowed to continue to collect the rents, has not complied with the order of this Court, and hence, he cannot have his own grievance to ventilate the same. 7. However, the learned counsel for the appellant brought to the notice of the Court that the appellant is 74 years old and he could not eke his livelihood at this age and there is no other income also and requested that a direction may to be issued to the Advocate Receiver to give the remaining rental amount which is nearly about Rs.17,000/- to the appellant every month. https://hcservices.ecourts.gov.in/hcservices/ 8. Heard, the learned counsel for the respondent who submits that giving a sum of Rs.17,000/- to the appellant, is on the higher side and a reasonable amount may be ordered to be given to the appellant. 9. Taking into consideration the facts and circumstances, this Court feels it fit and proper to issue a direction to the Advocate Receiver to pay a sum of Rs.12,000/- every month, out of Rs.17,000/-, directly to the appellant and the balance amount shall be deposited before the Court to the credit of the suit. 10. Accordingly, the appeal is disposed of. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vsi To The Sub Assistant Registrar Original Side High Court, Madras 1 cc to M/s. Raj and Raj Associates, Advocates, SR. 7552 1 cc to Mr.N.A. Nissar Ahamed, Advocate, SR. 7258 O.S.A.No.42 of 2010 KS (CO) kk 9/2 https://hcservices.ecourts.gov.in/hcservices/