- (1.) This petition under Article 226 of the Constitution seeks the issuance of a writ of certiorari quashing the order dated 2.4.1990 (Annexure XI) passed by the V Addl. District Judge, Azamgarh disposing of certain applications filed in the suit by the petitioner for permanent injunction, pendente lite and future mesne profits and partition in the alternative in respect of a cinema building; the machinery and the partnership business.
(2.) It appears that the learned lower court by its order dated 20.3.1988 appointed the Tahsildar Larganj District Azamgarh as receiver empowered to manage, protect and improve the suit property known as Smart Chhitra Mandir including the Cinema business. He was required to submit weekly statement of account, assets and liabilities etc. Durga Sahu preferred appeal against the said order. A bench of this court while dismissing the appeal appointed Durga Sahu as receiver vide order dated 21.5.1988. The petitioner moved application for removal of Durga Sahu. The application was allowed vide order of the Civil Judge dated 11.5.1989 and Durga Sahu was replaced by Sri Krishna Murari Singh Advocate. The said order was, however, set aside by the High Court's order dated 9.1.1990 with a direction to decide the application afresh. Thereafter by a fresh order dated 24.2.1990 Sri Shobh Nath Yadav the Chief Revenue Officer, Azamgarh, was appointed Receiver in place of Krishna Murari Singh Advocate. The petitioner moved an application on 24.3.1990 for a direction to Durga Sahu to submit statement of Account before the Court for the period he worked as Receiver and to deposit Rs. 7 lacs the alleged loss to the business due to alleged misappropriation of suit property by him during the period he was the Receiver. This application was moved under Order 40 Rule 3 CPC. The petitioner moved yet another application dated 27.3.1990 praying therein - "That for the reasons stated hereinabove the applicant most humbly and most earnestly prays that application Nos.461-C-2, 477-C-2, 592 C-2, 593-C-2, may kindly be taken up for hearing and the order passed to the Ex- Receiver regarding deposit of sums in his hand be implemented and the justice be done." Paras 3, 4, 5 and 6 of the said application dated 27.3.1990 being relevant are reproduced below : "3. That it would be relevant and important when the said defendant Receiver Durga Sahu took over the office movable as cash in hand as was Rs. 1,09,832.95 paise and at Bank was Rs. 1,47,732.80 p. as would be clear by the perusal of paper Nos. 221-C-1 and 284-C-1 respectively. 4. That the removed Receiver Durga Sahu has not accounted so far the cash balance Rs. 1,09,832.95 p, vide 221-C-1 and Rs. 1,84,725.30 p. vide paper No. 405-C-2. 5. That on 11.5.1989 when the removed Receiver gave up the charge and handed over the same to the then appointed Receiver, K.M. Singh, Advocate the Receiver retained a balance of Rs. 1,84,725.30 p. collected in his hands during his tenureship of his Receivership as per his own admissions made and signed vide paper No. 405-C-2. 6. That the Ex-Receiver Durga Sahu was specifically ordered by the court to deposit ail the entire amount of the disputed business in his hands and report to the court, by its order 11.5.1989. But the Receiver has not observed and honoured the said order of the court so far." By the order impagned in the petition, the application was rejected.
(3.) Having heard the learned counsel for the parties I am of the view that the order rejecting the application 594 Ka is not sustainable in law.;