This appeal concerned the appointment of a Receiver for a defendant Society. The Court held that a succeeding Secretary cannot assume the role of Receiver. The case was remanded for fresh consideration after hearing all parties regarding the appointment.
Impugned order set aside and application remanded for fresh consideration after hearing all parties concerned.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 24TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944
FAO NO. 103 OF 2015
AGAINST THE ORDER IN I.A.No.2292/2013 in OS 400/2011
OF PRINCIPAL SUB COURT,NORTH PARAVUR
APPELLANTS/PETITIONERS APPELLANTS: RESPONDENTS 22 TO 25, 27 TO 31 & 33 TO 36 -
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BY ADVS. P.MARTIN JOSE ELDHO CHERIAN P.PRIJITH THOMAS P.KURUVILLA
RESPONDENT/S: S /RESPONDENTS AND PETITIONERS 26 & 32
1 SHAILAJA PURUSHOTHAMAN, W/O PURUSHOTHAMAN NAMBOODTHIRIPPAD, KAILASAM HOUSE, PRUMBAVOOR KARA, PERUMBAVOOR P.O., PIN-683 542.
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FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT; VIDE ORDER DATED 19/11/2015 IN I.A.No.1297/20152022:KER:76949
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HOUSE, KANJOOR P.O., KANJOOR VILLAGE,PIN- 683575.2022:KER:76949
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KANJOOR P.O., KANJOOR VILLAGE,PIN- 683575.KANJOOR P.O., KANJOOR VILLAGE,PIN-683575.KOOTTALKKATT, AKKATT, , OORAKAM KARA, KODUNGALLUR TALUK,PIN- 680 664. *DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT; VIDE ORDER DATED 19/11/2015 IN I.A.No.1297/20152022:KER:76949
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26 M.R.SAJI, S/O.RAMAKRISHNAN,MATTATHAN HOUSE,KALADY P.O.,PIN-683 574.
27 E.S.SIJU, EETTUNGAPPADY HOUSE,KANJOOR P.O.,PIN-683 575. BY ADVS. P.B.KRISHNAN P.M.NEELAKANDAN S.NITHIN (ANCHAL) - R2 SABU GEORGE P.B.SUBRAMANYAN SREELAL N.WARRIER -R3, R26 & R27
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.
F.A.O.No.103/2015
J U D G M E N T
Dated this the 24th day of November, 2022
A.Muhamed Mustaque, J.
The appellants are defendant Nos.22 to 25,
27 to 31 and 33 to 36 in I.A.No.2292 of 2013
in O.S.No.400 of 2011 on the files of the
Principal Sub Court, North Paravur.
pleadings in this matter. The admitted facts would show that based on orders of this Court
in FAO No.183 of 2012, Mr.Saji M.R., the
Secretary of first defendant was appointed as the Receiver. The appellants filed a petition
to remove him. According to the appellants, he
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was accounting the money received, in the
status, as a Secretary rather than as a Receiver. There is a controversy in the matter regarding whether he was appointed as a Receiver in capacity of Secretary or in his personal capacity.
personal capacity rather than in the capacity of Secretary of the first defendant-Society.
The Court below did not allow the application
to remove him and directed the Receiver to
subject the income and expenditure to be
audited by an Accountant/Auditor. Not satisfied with this, an appeal was preferred. It is submitted that now the 27th respondent in FAO No.103 of 2015 succeeded as a Secretary of the Society. It is submitted by the learned
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counsel for the appellant that without discharging the earlier Receiver by an appropriate order, 27th respondent has been
appointed as a Receiver.
Having adverted to the earlier order
passed by this Court in FAO No. 183/2012, we
are of the view that Mr.Saji M.R. was
appointed as the Receiver. If he wants to relinquish, he is free to do so. If he
relinquishes, the new Receiver has to be appointed by the Court after hearing the
parties. The Secretary of the first defendant, who succeeds to the office by change of hands cannot assume himself as the Receiver. It is
for the Court to decide who has to be
appointed as the Receiver. Therefore, it is appropriate that the application be
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reconsidered after hearing all parties concerned. Impugned order is set aside for fresh consideration.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
SHOBA ANNAMMA EAPEN, JUDGE
vv/ms
1 issue framed by the court
Whether the Secretary of the Society can automatically act as the Receiver without a specific Court order.
MURALI
K.P.RAJAN
P.S.SUMESH
KUTTAPPAN
DIVAKARAN
MAJESH
A.MUHAMED MUSTAQUE
SHOBA ANNAMMA EAPEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court