TaxTMI 
TaxTMI 
1993 (3) TMI 368
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....ppeal 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 second defendant is the wife of the first defendant, and the third defendant is the sister of the second defendant. The plaint schedule properties consist of three items. Item No. 1 comprises Ac.20.37 cents of dry land and Ac.32.18 cents of wet land. Item No. 2 comprises Ac.3.49 of dry land and Ac.2.01 cents of wet land. Item No. 3 is a well and Item No. 4 is a residential house. 4. The case of the plaintiff, in brief, is that Penchal Reddy, the father of the first defendant, and her maternal grand-father, Yerrappa Reddy were brothers and in the half share of the property that belonged to Yerrappa Reddy, her mother's share was to the extent of 1/4 and due to the death of certain other co-sharers, her mother's share was enlarged to half of Yerrappa Reddy's branch; her claim was therefore, to the ....
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.... preserve, protect, lease them out, collect the rent and deposit the same to the credit of the suit. 6. Sri. Manohar, the learned counsel for the appellants in the C.M.A., has submitted that the grounds on which the receiver was appointed are totally untenable. In the absence of any allegation as to threat to the properties or the competence of the defendants to maintain and protect the properties or the possibility of the rights of the plaintiff being prejudicially affected, there is no warrant to direct appointment 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 circumstan....
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....; (3) The plaintiff must show some emergency or danger or loss demanding immediate action and he should be clear about his right; (4) The receiver should not be appointed if such appointment has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. If the property is 'in medio', that is to say, in the enjoyment of no one, the court can appoint a receiver; and (5) If the conduct of the party seeking appointment of receiver is not free from blame, the court shall not appoint a receiver. 10. A Division Bench of this court in Venkataswami v. Kotayya, has an occasion to consider the scope of Order 40, Rule 1 of the Code of Civil Procedure. The Division Bench held that a receiver can be appointed even on the application of a defendant if the circumstances warrant-to safeguard the interests of both the parties and to protect the properties. Explaining the scope of the words 'just and convenient' occurring in Order 40, Rule 1 Code of Civil Procedure, it was held: "What is required is that the court should not merely exercise the power vested in it under this rule in an arbitrary or unregulated manner but....
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....e considerations that has to be taken into account and the courts should not 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 properties by the defendants and avoidance of future complications in regard to the quantum of yield, the two grounds upon which the application for appointment of receiver was founded, are totally untenable. The claim of the plaintiff for a definite share in the joint family properties was already in dispute as could be seen from the reply notice issued by the defendants....