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TMI Blog1993 (3) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... epositing a sum of ₹ 10,000/- per annum from the date of filing of the said LA. till the disposal of C.M.A.No. 1465 of 1992 preferred by the defendants, the learned counsel for both sides agreed to argue the main C.M.A, itself. Accordingly, we have heard the learned counsel for both sides and this judgment will dispose of the C.M. A. itself. The parties in this appeal are referred to as they are arrayed in the suit O.S.No. 49 of 1990. 2. Chelikam Rajamma, the plaintiff (respondent in the C.M.A.,) instituted the suit OS. No. 3 of 1990 for partition of the plaint schedule property into four shares and for allotment of one share to her and for*future profits. 3. The first defendant is the Manger of the joint family properties, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was pleaded that the respondents (defendants) have been squatting over the plaint schedule property and are bent upon depriving the plaintiff of her share of income and so, in order to avoid future complications in regard to the quantum of yield from the properties and to avoid waste and damage, a receiver should be appointed. Resisting that application, the defendants pleaded that the grounds mentioned therein would not afford any justification for appointment of receiver. We must also mention in this context that the first defendant filed I.A.No. 237 of 1990 in the trial court averring that on 24-5-1990, a written agreement was executed between the first defendant and the plaintiff for adjudication of the dispute by the village elders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receiver to manage the plaint schedule properties. 7. In opposition to the above, it is contended by Smt. Jayashree Sarathy that the very fact that the plaintiff was kept out of possession for a number of years itself is a sufficient ground for appointment of receiver. 8. Under Order 40, Rule 1 of the Code of Civil Procedure, where it appears to the Court to be just and convenient, it may order the appointment of receiver, whether before or after decree to perform the functions specified therein. Once a receiver is appointed, the Court is empowered to confer upon such receiver, the powers incorporated in Clause (d) of Rule 1, Order 40. Under what circumstances a receiver can be appointed, there cannot be any hard and fast rule. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing on the subject-both Indian and American-Ramaswami, J. of the Madras High Court in Krishnaswamy v. Thangavelu, has observed that five requirements should be satisfied under Order 40, Rule 1 of the Code of Civil Procedure for the appointment of receiver. Even though the case in which Ramaswami, J laid down the five requirements did not arise out of a partition suit, the principles enunciated by the learned Judge are very useful guidelines in the exercise of discretion for appointment of receivers. They are: (1) The appointment of receiver is a matter in the discretion of the court and the discretion shall not be exercised in an arbitrary or unsound manner; (2) The Court should not appoint a receiver except upon proof by the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e protection of the interests of the parties in regard to any property whether before or after decree. 11. From an analysis of Order 40, Rule 1 of the Code of Civil Procedure in the light of the case law in relation to partition suits, the following propositions may be deduced: (1) The appointment of receiver cannot be resorted to lightly without considering the entire facts and circumstances. (2) The party seeking the appointment of receiver must out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to the inference of incompetence. (3) If, prima facie, the plaintiff has excellent chance of succeeding in the suit, there b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be carried away by the general principle enunciated in the old cases that in case of partition, there cannot be appointment of a receiver. 13. Having regard to the settled legal position, we are of the view that the proposition of law was stated too widely by the learned Judge. From the mere fact that the plaintiff is not in possession of the joint family properties, no inference shall follow that there is every possibility of the opposite party misusing the amounts or screening the income from the properties. We, therefore, do not approve of the view taken by the learned Judge. 14. Applying the settled legal principles, we are satisfied that the plaintiff has not made out any case for appointment of receiver. The possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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