Two appeals challenged a trial court order appointing a receiver for suit properties following a High Court direction to reconsider the prayer after ascertaining possession. The High Court held the trial court acted within jurisdiction.
Both appeals (FAO No.133 and 84 of 2009) were dismissed as devoid of merit; no order as to cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF ORISSA: CUTTACK
FAO NOs.133 and 84 OF 2009
From order dated 09.02.2009 passed by the learned 2nd Additional Civil Judge (Senior Division), Cuttack in I.A.No.29 of 2005 arising out of T.S. No.22 of 1999.
------------- In FAO No.133 of 2009 Prafulla Chandra Swain …… Appellant -VersusSri Prabhat Kumar Swain & others …… Respondents For Appellant : M/s. A.P.Bose, P.K.Rout, S.K.Mohanty, Miss P.Jena Mrs.S.Mohanty & D.Varadwaj For Respondents : M/s P.K.Rath, R.N.Parija, A.K.Rout & S.K.Patnaik (For R-1) M/s N.Parija & S.K.Rout (For R-2 to 4, 6, 13 & 14) M/s Bhagaban Mohanty, B.Moharana, D.Chhotray & S.Mohanty (For R-7 to 9) Mr.Suresh Ch. Mohanty (For R-15) M/s M.K.Mishra, T.K.Acharya, B.Pasayat & P.K.Behera (For R-18 to 24) In FAO No.84 of 2009 Sri Prabhat Kumar Swain …… Appellant -VersusPrafulla Chandra Swain & others …… Respondents
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For Appellant : M/s. P.K.Rath, R.N.Parija, A.K.Rout & S.K.Patnaik
For Respondents : M/s A.P.Bose, P.K.Rout,
(For R-1)
M/s Bhagaban Mohanty, B.Moharana, D.Chhotray & S.Mohanty
(For R-7 to 9)
Date of Judgment: 19.01.2016
P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
K.R. Mohapatra, J. Order dated 09.02.2009 passed by learned 2nd Additional
Civil Judge (Senior Division), Cuttack in IA No.29 of 2005 filed under Order 40 Rule 1 CPC arising out of T.S. No.22 of 1999 is under challenge in these appeals.
Subsequently, defendant No.1, namely, Prabhat Kumar Swain, appellant in FAO No.84 of 2009 and respondent No.1 in FAO No.133 of 2009 filed one application under Order 40 Rules 1
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and 2, CPC (I.A. No.29 of 2005). He contended therein that one Sri Prana Krushna Swain was the owner of the suit schedule properties. The plaintiff is not the natural born son of said Prana Krushna Swain. He is the son of one Keshab Chandra Rout. However, he has been collecting rent from ‘A’ schedule property, which is a Lodging, namely “Shree Krishna Lodging” situated at Dolamundei, Cuttack and is creating disturbance in the management of the schedule ‘A’ properties. Similarly, other properties are in possession of different persons being let out by the parties to the suit and they are collecting rent from the tenants residing over those properties. Thus, defendant No.1 prayed for appointment of receiver in respect of the suit schedule properties for best management and smooth collection of rent from the tenants residing over the suit schedule properties. The plaintiff and other defendants filed their respective objections. Learned Civil Judge, by his order dated 25.11.2005, dismissed the said application against which FAO No.3 of 2006 was filed by defendant No.1. This Court by order dated 29.02.2008 allowed the FAO, with the following direction.
“In the present case, since there are a number of parties in the suit and it is stated that they are in possession of various different properties, it would be proper to quash the order dated 25.11.2005. Hence, the order dated 25.11.2005 passed by the 2nd Addl. Civil Judge (Sr. Division), Cuttack is quashed and remit back the matter to the said court for reconsideration of the prayer made by the petitioner for appointment of receiver after ascertaining from the parties to the proceeding in
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respect of Schedule-A property mentioned in the Interim Application. The respective parties are directed to give their evidence in support of their respective possession and thereafter the court below will consider the prayer for appointment of receiver and conditions if any. The entire exercise be completed within a period of eight weeks from the date of receipt of this order.”
“Taking the facts and circumstances of the present case into consideration and as there is rival claim of both the parties regarding their possession over the suit properties, I think it just and convenient to appoint a receiver for management of the suit properties. If a third person will be appointed as receiver then there may not be proper maintenance of the suit property and there may be further complicacy in the matter. Hence, I think it proper to appoint one of the parties to the suit who will deposit the highest amount towards the annual income out of the suit property, in Court, as receiver in this case in the interest of justice. Hence, the parties are directed to file their willingness and to inform the amount which they will deposit towards the annual income of the suit property in Court, in case of their appointment as receiver. Put up on 19.02.2009 for filing of option by the parties. Accordingly, the petition is disposed of on contest.”
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No.133 of 2009. Thus, FAO No.133 of 2009 alone is required to be considered.
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directed for reconsideration of the prayer made in the I.A. No.29 of 2005. Defendant No.1 in IA No.29 of 2005 prayed for appointment of receiver in respect of schedule ‘A’ to ‘E’ properties. Thus, the contention of the appellant in FAO No.133 of 2009 is misleading. This Court, while disposing of FAO No.3 of 2006, has directed the learned Trial Court to ascertain possession of the parties in respect of schedule ‘A’ properties as there was scramble for possession in respect of the same. In addition to ‘A’ schedule properties, schedule ‘B’ to ‘E’ properties have been let out to different tenants and the parties to the suit are apportioning the rents from said tenants. Thus, learned trial Court has rightly directed for appointment of receiver in respect of schedule of properties of the I.A.
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learned Trial Court has proceeded in strict adherence of the direction of this Court in FAO No.3 of 2006. He has given ample opportunity to all the parties to adduce their evidence. Parties to the I.A. have also adduced oral as well as documentary evidence in support of their respective cases. Considering the rival contentions of the parties and taking into consideration the evidence on record, learned trial Court at paragraph 6 recorded finding that none of the parties was successful to prove their possession. He further observed that both the parties admitted that the suit properties (schedule ‘A’ to ‘E’) are leased out in favour of different tenants. Thus, he decided to appoint a receiver in respect of scheduled properties and directed the parties to submit their willingness and to inform the amount which they will deposit towards the annual income of the suit properties in the Court in the event they are appointed as receiver.
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appointment of receiver. The main controversy of the parties in the I.A. was with regard to the possession in respect of ‘A’ schedule properties. Thus, this Court, while disposing of FAO No.3 of 2006 vide order dated 29.02.2008, directed for ascertainment of possession of the parties in respect of ‘A’ schedule properties. There is no quarrel over the fact that the petition for appointment of receiver was filed in respect of the properties mentioned in schedule ‘A’ to ‘E’ of the said I.A. This Court, while disposing of the FAO No.3 of 2006, has also directed for reconsideration of the prayer made for appointment of receiver. Thus, the contention of Mr.Bose to the effect that the direction was made for appointment of receiver in respect of schedule ‘A’ properties only, is not sustainable. In addition to the above, in course of adjudication of I.A. No.29 of 2005 by the learned Civil Judge, the parties to the suit admitted that the suit properties described in schedule ‘A’ to ‘E’ of the I.A. have been leased out to different tenants. Moreover, the appellant in FAO No.133 of 2009 prayed to appoint him as receiver in respect of the suit properties, i.e., schedule ‘A’ to ‘E’ properties of the I.A. The other contesting respondents in the said FAO also prayed to appoint them as receivers in respect of suit properties. Hon’ble Supreme Court in the case of Kasturi Bai and
others Vs. Anguri Chaudhary , reported in AIR 2001 SC 1631 had held that when the suit properties are let out to different tenants and the rent is being collected from them, it would be just and
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proper to appoint a receiver in respect of the suit properties for the interest of justice. In that view of the matter, I do not find any merit in the contention of Mr.Bose. Accordingly, both the appeals are dismissed being devoid of any merit, but in the circumstances,
there is no order as to cost.
………………………..
K.R. Mohapatra, J.
Orissa High Court, Cuttack Dated the 19th January, 2016/ss/bks
3 issues framed by the court
Whether the trial court exceeded its jurisdiction in appointing a receiver for the entire suit property (Schedules A to E) contrary to the High Court's direction which focused on Schedule A?
Whether the appointment of a receiver for the leased out property is justified to ensure proper collection of rent and smooth management?
Whether the impugned order appointing a receiver should be set aside or maintained?
Colour shows how this judgement treated each authority
Kasturi Bai and others Vs. Anguri ChaudharyApplied¶42
Kasturi Bai and others Vs. Anguri Chaudhary, AIR 2001 SC 1631 · Who else cites this
2 provisions across 2 enactments
Prafulla Chandra Swain
Prabhat Kumar Swain
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
