- (1.) THIS is an appeal by the defendants under Order XLIII Rule 1 Clause (c) C. P. C. from the order of the Civil Judge, Balotra, dated 10th November, 1952, appointing a receiver of their jagir.
(2.) THE facts giving rise to it are that the plaintiff-respondents brought a monetary suit against the appellants for Rs. 15,000/ -. THE suit was filed on 30. 10. 52. On the same day the plaintiffs presented an application in the trial court saying that their claim involved a large sum, that the defendants' jagir was likely to be resumed very soon because of the enactment of the Land Reforms and Resumption of Jagirs Act. that if the jagir would be so resumed the realisation of the decree would not only be difficult but impossible, that the very purpose of bringing the suit would be defeated and therefore it was prayed that a receiver should be appointed for realising the income of the jagir and keep it in the custody of the court till the decision of the suit. One of the plaintiffs viz. Ridmal filed an affidavit in support of the application. THErein it was further mentioned that the defendants had transferred their jeep to their relative. Notice of this application was given to the defendants and 8th November, 1952, was fixed for hearing. That day the second plaintiff Nihal Chand presented another application saying that defendant No. 1 had become old and he had handed over the management of the jagir to his son, defendant No. 2, that defendant No. 2 was spendthrift, that he was wasting the income of the jagir and was intent upon defeating the plaintiff's decree. THE court was, therefore, requested again to appoint a receiver. In reply it was contended by the defendants that there was no provision of law for appointing a receiver in a money suit, that in case of the resumption of the jagir by the State, the defendants would get compensation and the plaintiffs would be entitled to realise his decree if there is any, that there was no charge of the plaintiffs' debt on the jagir, that the plaintiffs in fact wanted to get attachment of the defendants' property before judgment but since they had no good ground to make an application under that order they had resorted to this method and therefore their application should be dismissed. The trial court thought that plaintiffs' fear was reasonable and therefore it passed an order for the appointment of a receiver on a remuneration of Rs. 70/- per month on 10. 11. 52. It is against this order that the present appeal has been filed. The appellants' learned advocate has contended that the plaintiffs have neither a prima-facie case nor a good title to the property nor a charge over the property nor any special equity in their favour, that there was no question of even preserving the property from waste or alienation, that no steps were taken by the government for the resumption of the appellants' jagir and even if it were to be resumed, the plaintiffs could satisfy their decree out of the compensation to be given in lieu of resumption, and that there being no good ground for appointing a receiver that order should be vacated. Respondents learned advocate has on the other hand raised a preliminary objection that the trial court had a discretion to appoint a receiver whenever it thought just and con-venienrt to do so, and that the appellate court should not interfere with its discretion. He has referred to a Division Bench case of this Court, Mst. Goran vs. Jamnadas (l ). In that case it was held that "a court of appeal will be slow to interfere with the discretion of the lower court in the appointment of a receiver, and would interfere only if satisfied that the discretion has not been exercised in accordance with settled principle of law. " It may be pointed out that in the above case it was not laid down as a rule that the appellate court would never interfere with the discretion of the lower court. All that was suggested was that an appellate court would not lightly interfere with the discretion of the trial court unless the discretion has been exercised against settled principle of law. We have, therefore, to see in the present case if the trial court has used its discretion judicially or arbitrarily and if this Court finds that the discretion has not been properly exercised then it would certainly be its duty to set it right. Now, turning to the merits of the order it is urged by the appellants' learned advocate that in a money suit the court has no jurisdiction to appoint a receiver and that a receiver can be appointed only if the plaintiff has an interest in the property, or the property is itself the subject of litigation. In support of his argument he has referred to the case of P. C. L. Choudhuri vs. K. Singha and H. C. Dutt (2 ). In that case it was held that "there is no jurisdiction in the court to appoint a receiver at the instance of a simple contract creditor unless the creditor establishes a special equity in his favour for such appointment" Learned advocate for the respondents has on the other hand referred to the cases of A. R. A. R. A. L. Chettyar Firm vs. U. Sin (3) and Hariram vs. Firm Maddumal (4 ). In the first case it was held that "the rule does not say that a receiver can be appointed only of property which is the subject matter of a pending suit. What it says is that if it is found just and convenient a court can appoint a receiver of any property provided the plaintiff or the defendant has a right thereto. " This view was followed in the second case in which it was observed that "the words "just and convenient" construed according to the ordinary rules do not limit the appointment of a receiver to a property over which the plaintiff has a lien: and that a receiver may be appointed if the appointment is in fact just and convenient. " It may be pointed out that sec. 503 of the old Civil Procedure Code before its amendment provided for the appointment of a receiver whenever it appeared to the court "to be necessary for the realisation, preservation or better custody or management of any property". These words were, however, deleted and the present Rule 1 of Order XLV C. P. C. provides that "where it appears to the Court to be just and convenient, the Court may by order appoint a receiver of any property, whether before or after decree. " It is clear from the wordings of the present rule that the provision for the appointment of a receiver has been widened in its scope inasmuch as the court can appoint a receiver both before and after the decree whenever it appears to it to be "just and convenient". It is therefore no doubt true that the powers of the court with regard to appointment of receivers are now very wide, but this does not mean at the same time that the court can arbitrarily appoint a receiver in any case by simply saying that it is 'just and convenient' to do so. The wider the powers of the court the greater is the responsibility to see that such powers are not mis-used. The justice and convenience in every case must be weighed and examined judicially. The words "just and convenient" appearing in Order XL, Rule I have been derived from the English Judicature Act which greatly enlarged the powers which were formerly exercised by the Court of Chancery. The courts in India have also now wider jurisdiction to appoint and to remove a receiver but that jurisdiction is to be used by the exercise of a sound judicial discretion. The words "just and convenient" do not mean to imply "justice" and convenience" only for one party but justice and covenience according to judicial notions of what is right and just. I would not go to the extent of saying that a receiver can never be appointed in a money suit brought at the instance of a simple creditor There may be some cases in which the creditor is able to establish that there is a special equity in favour of such an appointment, but ordinarily it is neither just nor convenient to appoint a receiver in a many suit brought by a simple contract creditor merely because it is alleged by the plaintiff that he would not be able to get satisfaction of the decree unless the receiver is appointed. In the case of Owen vs. Homan (5) it was observed by Lord Chancellor as follows - "the plaintiffs here do not claim as specific appointees of any part of the defendant's separate estate. They are merely in the nature of general creditor seeking to obtain payment by a sort of equitable action of assumes it or debt. In such a case it is a wrong exercise of authority to deprive the defendant, on motion, of property of which the plaintiffs have no specific claim, in order that if they establish their claim as creditors there may be assets wherewith to satisfy them. " In the case of Hemendra Nath Roy Chowdhury vs. Prakash Chandra Ghosh (6) it was held, following the earlier decision in the case of Dharendra Krishna Deb vs. Surendra Krisha Nadi (7) that "a simple contract creditor who has no specified charge or no right to be paid out of a special fund cannot, in general ask for the appointment of a receiver". Similarly in the case of Harkishandas Nanjibai vs. Chaturbhuj Prabhudas (8) it was held that "as a general rule, a receiver is not appointed at the instance of a mere general creditor over property to which he has no specific claim merely in order that if he establishes his claim as a creditor there may be assets wherewith to satisfy it. "
(3.) IF is a fundamental right of every person that he must remain in possession of his property and manage i in his own way He should not be deprived of its management at the instance of a simple creditor simply because he files a suit and requested as a plaintiff that he would be able to satisfy his claim easily from the defendant's property if a receiver is appointed. There must be very strong and special reasons for the court to appoint a receiver in such a case. Now coming to the merits of this appeal the learned Civil Judge simply dealt with the point whether or not he had jurisdiction to appoint a receiver, but he has not exercised his mind in the least to see if the plaintiffs had any special equity in their favour or that there was any strong ground for resorting to this action. The respondents have made only two allegation in the trial court, in their first application the only reason given was that the Government was probably going to resume the jagirs because the Land Reform and Resumption of Jagirs Act had come into force and that if the jagir was so resumed it would be impossible for them to get their decree satisfied. It is difficult to understand how the learned Civil Judge was so easily led away by this argument. The Land Reform and Resumption of Jagirs Act provides a reasonable compensation to be given to those jagirdars whose jagirs are resumed. It was no-where alleged by the plaintiffs that the Government would not give compensation in the present case or that even if the compensation is given it would fall short of the decree which might be passed in their favour. The defendants had in their reply clearly mentioned that even if their jagir is resumed they will get compensation and the plaintiffs could take proceedings to satisfy their decree out of it. The respondents have not shown that there is any specific charge on the jagir. A jagir is ordinarily in alienable and unless something extra-ordinary comes to happen there seems little reason why the respondents should not be able to have their debts satisfied from the appellants' property. Another reason given by the resopndants at the time of their second application was that defendant No. 2 was intent upon defeating their claim and that the resopndents had transferred their jeep. These allegations were very vague. It was not mentioned in what why defendant No. 2 was trying to defeat the resopndents' claim nor was it shown at what time and to whom the jeep car was transferred. If the jeep was given to some relation out of some special consideration or if it was transferred prior to the institution of the suit the respondents could not justly arise any objection about it. Thus there was absolutely no good ground for the trial court to deprive the appellants of their management of the property and to saddle them with an extra expense of Rs. 70/- per month by appointing a receiver. There is not the least justification for maintaining this order. The apppeal is, therefore, allowed with costs and the order of the trial court dated 10th November, 1954, is set aside. .;