9911796707
TMI Blog1954 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 and T. O. S. No. 4 of 1911 on the file of this Hon'ble Court. Under the said will the testator made a provision for his heirs including his wife, daughters and daughters' children, so that, the properties may be enjoyed by them during their lifetime and subsequently by their children absolutely, but in spite of the intention of the testator and the best care he has taken to secure the enjoyment of properties for his relations, the properties have now fallen into the hands of strangers by malpractices of some of the heirs of the testator with the result while the relations of the testators suffering, strangers who are not thought of by the testator are in unjust and illegal enjoyment of the properties for a very long time....... If the respondents are allowed to enjoy the income of the properties during the pendency of the suit herein, it may be even impossible after the decree to recover anything from them. Further the respondents are not taking care of the properties on account of which the houses have fallen into disrepair and they am not fetching good rent. 4. The contesting respondent-defendant, viz., the auction-purchaser in possession of these properties conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his application is whether on a consideration of the facts set out above a case has been made out for the appointment of a Receiver. 6. A receiver , in the language of High, is an indifferent (American expression for impartial) person between the parties to a cause, appointed by the Court to receive and preserve the property or fund in litigation pendente lite', when it does not seem reasonable to the Court that either party should hold it. He is not the agent or representative of either party to the action, but is uniformly regarded as an officer of the Court, exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of all parties in interest. Being an officer of the Court, the fund or property entrusted to his care is regarded as being in 'custodia legis', for the benefit of who-ever may finally establish title thereto, the Court itself having the care of the property by its receiver, who is merely its creature or officer, having no powers other than these conferred upon him by the order of his appointment, or such as are derived from the established practice of Courts of equity. A receiver is frequently spoken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s defined clearly the extent of equity jurisdiction of the three Presidency High Courts which inherited by the respective charters the old equity jurisdiction of the late Supreme Courts. Therefore, the best guides in the matter of interference by way of injunction and receiver have been judicially stated to be the principles which determine the action of Courts of Equity in England. It is in fact on these principles that the relief given in Indian Courts by injunction and Receiver is in the main founded, and, this relief is in substance the same as that granted by Courts in England. (See -- 'Jaikissondas v. Zenabai', 14 Bom 431 at p. 434 (A); --'Chandidat Jha v. Padmanand Singh Bahadur', 22 Gal 459 at p. 464 (B); -- 'Mt. Mikanbai v. Dassimal Gangaram', AIR 1918 Sind 61 at p. 63 (C) and -- 'Nasir Ahmed v. Lutf Ahmed, AIR 1949 Pat 496 (D)). 10. In addition the judgments of the superior Courts of the United States of America constitute also the best guides in the matter of interference by way of injunction and receiver because the Specific Relief Act was originally drafted by Dr. Stokes on the basis of the New York Code of 1862. It is not surprising, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere by this kind of interim protection of the property. Where, indeed, the property is as it were 'in medio', in the enjoyment of no one, it is the common interest of all parties that the Court should prevent a scramble, and a receiver will readily be appointed: as, for instance, over the property of a deceased person pending a litigation as to the right to probate or administration. But where the object of the plaintiff is to assert a right to property of which the defendant is in enjoyment, the case presents more difficulty; The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. (See -- 'Marshall v. Charteris', 1920-1 Ch 520 (I)). Where the evidence on which the Court is to act is very clear in favour of the plaintiff, then the risk of eventual injury to the defendant is very small, and the Court does not hesitate to interfere. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not appoint a receiver at the instance of a person whose right is disputed, where the effect of the order would be to establish the right, even if the Court be satisfied that the person against whom the demand is made is fencing off the claim (-- 'Greville v. Fleming , (1845; 2 Jo Lat 335 (Z); (1920) 1 Ch 520 (1)). Nor will the appointment be made where it might affect legal rights; a receiver will not, for instance, be appointed merely to prevent an executor exercising his right of retainer (-- 'Re. Wells Molony v. Brooke', (1890) 45 Ch D 569 (Z1)) The Court, on the application for a receiver, always looks to the conduct of the party who makes the application, and will usually refuse to interfere unless his conduct has been free from blame (See -- 'Baxter v. West', (1858) 28 LJ Ch 169 (Z2); -- 'Cf. Wood . Hitchings', (1840) 2 Beav 289 at p. 297 (Z3)). Parties who have acquiesced in property being enjoyed against their own alleged rights cannot except in special circumstances come to the Court for a receiver (-- 'Gray v. Chaplin', (1826) 2. Russ 126 at p. 147 (Z4); (1836) 1 My Cr 162 (Y)) (Kerr on Receivers 12th edition pp. 5 to 7) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a very high nature, and not to be exercised when it would be productive of serious injustice or injury to private rights. The exercise of the extra-ordinary power of a chancellor in appointing receivers, as in granting writs of injunction or 'ne exeat', is an exceedingly delicate and responsible duty, to be discharged by the Court with the utmost caution, and only finder such special or peculiar circumstances as demand summary relief. Indeed, the appointment' of a receiver is regarded as one of the most difficult and embarrassing duties which a Court of equity is called upon to perform. It is a peremptory measure, whose effect, temporarily at least, is to deprive of his property, a defendant in possession, before a final judgment or decree is reached by the Court determining the rights of the parties. It Is therefore not to be exercised doubtingly, but the Court must be convinced that the relief is needful, and that it is the appropriate means of securing an appropriate end, And since it is a serious interference with the rights of the citizen, without the verdict of a jury and before a regular hearing, it should only be granted for the prevention of manifest wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emergency or danger or loss demanding immediate action and of his own right, he must be reasonably clear and free from doubt. The element of danger is an important consideration. A Court will not act on possible danger only; the danger must be great and imminent demanding immediate relief. It has been truly said that a Court will never appoint a receiver merely on the ground that it will do no harm. -- Manghanmal Tarachand v. .Mikanbai', AIR 1933 Sind 231 (221); -- 'Bidurramji v. Keshoramji', AIR 1939 Oudh 31 (Z22); -- 'Sheoambar Ban v. Mohan Ban', AIR 1941 Oudh 328 (223). (4) An order appointing a receiver will not be. made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. If the dispute is as to title only, the Court very reluctantly disturbs possession by receiver, but if the property is exposed to danger and loss and the person in possession has obtained it through, fraud or force the Court will interpose by receiver for the security of the property. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one, as the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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