Nagendra Prasad Singh, J. - (1.)The plaintiff is the appellant in this appeal which arises out of an order passed by the learned Subordinate Judge rejecting the prayer of the plaintiff to appoint a receiver in respect of the subject-matter of the suit. It appears that the plaintiff had filed the suit in question for declaration that he is the legally appointed Mahanth of the Pipra-dadan math and as such entitled to manage the properties of that Math. A prayer for recovery of possession of the properties in question was also made. During the pendency of the suit an application for appointment of receiver was made, saying that although the defendant had no right to be in possession of the properties of the math, being in such possession he was misappropriating the income of the Math and wasting the same. According to the plaintiff, it was just and proper that a receiver be appointed in respect of the properties in suit. A show cause to that application was filed on behalf of the defendant-respondent. As already stated, the learned Subordinate Judge dismissed the said application.
(2.)Learned counsel appearing on behalf of the appellant has submitted that the learned subordinate judge has not considered the different aspects of the matter and the materials on record before rejecting the application for appointment of receiver. In support of the aforesaid submission the learned counsel has placed the order under appeal. From the order it appears that the learned subordinate judge has observed that from the facts pleaded in the plaint "it is clear that the defendant has practically removed the plaintiff from Math and all the properties of the Math are in possession of the defendant for which the plaintiff seeks recovery of possession." Then, he has stated in the order that a receiver cannot be appointed ''in order to put a person in possession of the properties", Really, we are not able to appreciate as to what actually the learned subordinate judge meant by the observations referred to above. Whenever an application for receiver is made, it is generally an admitted position that the other side is in possession of the properties over which a receiver is sought to be appointed. As such, it cannot be held as a proposition of law that a receiver cannot be appointed when one of the parties to the suit is found to be in peaceful possession of the properties in question.
(3.)Order 40, Rule 1 of the Code of Civil Procedure itself vests power in the court, whenever it considers it just and convenient, to (a) appoint a receiver of any property, (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the receiver; and (d) confer upon the receiver all such powers for management and protection of the property in suit. Rule 1 of Order 40 simply says that whenever it is just and convenient, a receiver can be appointed by the court for the management of the properties in suit. The words Must and convenient' have been interpreted by different courts, and in that connection certain guidelines have been laid down which have to. be borne in mind at the time of appointing a receiver. Rama-swami, J. of the Madras High Court in the case of T. Krishnaswamy Chetty v. C. Thangavelu Chettv (AIR 1955 Mad 430), after referring to different cases on the point, has observed :-- (i) The appointment of a receiver pending a suit is a matter resting in the discretion of the court, (ii) The court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. (iii) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some 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. (iv) 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. It would toe different where the property is shown to be 'in medio' that is to say, in the enjoyment of no one. And (v) The Court, on the application made for the appointment of a receiver, 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.