BARKAT-UN-NISSA Vs. ABDUL AZIZ
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Knox and Blair, JJ -
(1.) THIS is an appeal from an order passed by the Subordinate Judge of Moradabad on the 29 July 1899, refusing to appoint a receiver to certain property, the subject of a suit before him. The ground on which the learned Subordinate Judge bases his refusal is that in suits like this one before him, there is no rule for the appointment of a receiver, and injunctions only are deemed sufficient. He adds that there is no reasonable cause for the appointment of a receiver. Now as to the circumstances of the case. The respondent Maulvi Abdul Aziz is a person who in a prior suit had claimed a declaration from thi mCourt that one Nurul Haq, munsarim of certain waqf property--the property now in suit--had been dismissed from his office of munsarim, that he, Maulvi Abdul Aziz, had been appointed as manager in Nurul Haq's place, and that being so, the mutawalli, Musammat Barkat-un-nissa, had no right to remove bim, the said Abdul Aziz, from the managership. The suit brought by Maulvi Abdul Aziz against Musammat Barkat-un-nissa and others was fought up to this Court with the result that the declaration that Maulvi Abdul Aziz asked for was refused and his suit dismissed. THIS order was passed on the 10 May 1899. Upon this the appellant before us instituted a suit for the ejectment of Maulvi Abdul Aziz, and after institution applied to the Subordinate Judge for the appointment of a receiver under Section 503 of the Civil P. C.. The order refusing the appointment practically gives no reasons for the refusal, and it is not therefore easy to say with authority what it is that weighed upon the Subordinate Judge's mind. The matter has, in another form, been already before this Court, as the appellant asked for an appointment of an ad interim receiver pending the hearing of the present appeal. It was then held that the powers of a Civil Court trying an action for ejectment were not in any degree controlled by reason of a Magistrate making an order maintaining possession on behalf of one of the litigants under Section 145 of the Criminal P. C.. The reference here made is to an order passed by a Magistrate in 1896, whereby the Magistrate, acting under the provisions of Section 145 of the Criminal P. C., decided that Mauhri Abdul Aziz was in possession and issued an order declaring him to be entitled to possession until "evicted therefrom in due course of law." If this was the fact which weighed with the Subordinate Judge we can only repeat in clear terms what was said on the 18 November 1899, namely, that the Civil P. C. and the powers of Civil Courts under that Code are in no way fettered by any order that may be passed by a Magistrate under Section 145 of the Criminal P. C.. The Magistrate's order under Section 145 is only intended to control any period up to the time when the Civil Court takes seisin of the matter and passes such orders as may be necessary for the protection of the property. In the present case we consider it absolutely necessary for the preservation and better custody and management of the property that neither of the contending parties should be in possession of it until the dispute between them has been fully determined, and that the property should remain in the custody of a person independent of both parties,--a person moreover whose position will be that of an officer of the Court appointed, by and answerable to the Court for all acts done by him during the period of his receivership. We accordingly allow the appeal, set aside the order of the learned Subordinate Judge, and send this case back to him to be dealt with in the light of our instructions and in accordance with the provisions of Section 505 of the Civil P. C.. The appellant will g8t her costs. We think it expedient to add that our order is not to be interpreted as an order setting aside the order of the Magistrate. The appointment of a receiver should be made with the least possible delay, and in order that the Magistrate may be aware of the purivew of the order of this Court we direct that a copy be sent to him for his information.;
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