High Court · 2010

The material facts, which have given rise to this application, w ere narrated in the order, dated 08.04.2005, passed in RFA No.7/2003, whereby di fferences, arising out of the decreetal property, were referred to, and made ove r for, mediation. The order, dated 08.04.2009, reads as under:- (cid:28)The application is filed with the prayer as follows: ’ & it is therefore prayed that Your Lordships would be pleased enough to consider the above and on such consideration further pleased to appoint a Recei ver in respect of the suit property as described in schedule of the Title Suit N o.23/87 in exercise of power conferred in Order 40 Rule 1 of the Code of Civil P rocedure, authorizing such Receiver realization, collection of rents and profits arising out of the suit property, protection, preservation and improvement of t he suit property till final disposal of the Appeal and/or may pass any other ord er or orders as Your Lordships may deem fit and proper to protect the suit prope rty from being damaged and wasted.’ The applicant is one of the decree holders, along with respondent No.2 h erein, in TS No.23/87 on the file of learned Senior Civil Judge, Silchar. The su it was filed for declaration of the share of the applicant, who was the plaintif f No.1. Aggrieved by the said judgment the RFA No.7/03 was carried this court by one of the judgment debtors (defendant No.2 in the suit). Eventually the RFA al so came to be dismissed by this court by a judgment dated 2-7-08. The matter was carried to the Supreme Court by the above mentioned appellant unsuccessfully. I n other words the preliminary decree referred to above attained finality. However, a final decree of partition and delivery of possession conseque nt on the above mentioned preliminary decree has not yet been passed. We are inf ormed that enquiry into the mesne profits to which the present applicant or for that matter both the decree holders are entitled is not yet concluded. During the pendency of the RFAS No.7/03 by virtue of certain interim ord ers dated 29.6.06 the applicant herein was directed to be paid by the judgment d ebtors an amount of Rs.10,000/- per month during the pendency of the appeal. The judgment debtors did in fact make such payment from July, 2006 to July, 2008. T hereafter the judgment debtors stopped payment and we cannot technically find fa ult with them as the interim order lapsed with the disposal of the appeal result ing in a situation that the present appellant, we are informed, who is 95 years old is in a weak position after she succeeded in the appeal. We are also informed by the learned counsel for the judgment debtors tha t some of the respondents/ judgment debtors are also aged people. The respondent No.2 is 80 years, respondent No.1 is about 60 years and respondent No.2 is abou t 60 years and respondent No.2 is aged about 50 years. In the circumstances we are of the opinion that the whole dispute betwee n the parties could be settled by mediation as their respective legal rights are not in dispute. What remains is only the translation of the ascertained legal r ights into action of identifying the appropriate portions of the property which are to be partitioned between the various parties. We, therefore, suggested to t he learned counsel appearing on the either side that it is better that the matte r be settled by mediation. All the learned counsel appearing both for the applicant as well as the various judgment debtors agreed to settle the matter by mediation. We, therefore , direct the parties to approach the Member Secretary, Stte Legal Services Autho rity, Guwahati for mediation or for placing the matter before the District Media tion Center at Silchar for final settlement of the rights of the parties in acco rdance with the preliminary decree. We have heard the learned counsel for the judgment debtors who agree to pay an amount of Rs. 10,000/- to the applicant within a period of one week from today by depositing the same in the S/B Account No.11625 of Central Bank, Silcha r. The learned counsel also agreed to pay another amount of Rs.40,000/- to the a pplicant in two equal installments the first of which should be paid on or befor e 15.05.09 and the second on or before 15.6.09 and shall be deposited in the afo rementioned account of the applicant. The amount so deposited and the amounts paid during the pendency of the appeal shall be given credit to by the mediator while determining the mesne prof it due to the applicant. (cid:29) In view of the fact that the efforts for mediation have failed, the part ies are, once again, before us. We have heard Ms. P. Chakraborty, learned counsel for the applicant/Plai ntiff No.1; Mr. B.K.Goswami, learned Senior Counsel, appearing for the Plaintiff No.2 and Mr.G.N.Sahewalla, learned Senior Counsel appearing for the Opposite Pa rties. Upon hearing the learned counsel for the parties, what transpires is tha t no final decree could be passed as yet due to the fact that plaintiff No.2 has sold a part of the suit land to a stranger to the suit and the purchaser have b een obstructing drawing up of the final decree. The decreetal property is indisp utably a joint property and none of the co-owners can lay claim on any specific part or portion of the decreetal property. The purchaser of the decreetal proper ty, from plaintiff No.2, can acquire, at best, be regarded to have stepped into shoes of the plaintiff No.2. Neither the plaintiff No.2 nor any of her vendees c an be regarded as sole owner, or exclusive possessor, of any specific part or po rtion of the decreetal property. The actual possession may be with any of the co -sharers, but the possession of each of the parties to the decreetal property re mains joint with others. When the plaintiff No.2 could not lay any claim on any specified part or portion of the decreetal property to the exclusion of all othe rs, any resistance to the drawing of the final decree, to be passed in the execu tion proceeding, cannot be sustained. Because of the alienation of the property, in the manner as aforesaid by the plaintiff No.2, the preparation of the final decree is being inordinately d elayed. Not only the plaintiff No.1, who has filed this application, but many of the other joint owners of the property in question are old, the petitioner No.1 being as old as 95 years. She does not have, as discernable from the materials on record, any independent source of income. A person must be entitled to enjoy the fruits of the decree, which he/she may obtain. In the present case, despite the fact that the suit is as old as 12 years, the final decree could not be pass ed due to some resistance from the co-owners of the decreetal property and their successors-in-possession. Situated thus, we find considerable force in the submissions made on beh alf of the applicant that until the time, the decreetal property is effectively partitioned by the granting a final decree, a receiver needs to be appointed in respect of the decreetal property so as to manage the decreetal property in such a way that it helps the preparation of the final decree. Resisting this application, Mr. B.K.Goswami, learned Senior Counsel, app earing for the Plaintiff No.2, has submitted that to the extent possible, a co-s harer should be allowed to retain that part of the property, which he or she may be in possession of. The fact, however, remains that due to resistance and obst ructions offered by the vendee of plaintiff No.2, the mediation could not succee d nor has the final decree has been drawn. In such circumstances, we are of the view that the plaintiff No.1 must be able to enjoy the fruit of the decree and s he should not be denied such enjoyment by delaying the preparation of the decree . If a receiver is not appointed, more and more rights may be created by co-owne rs and changes in the nature of the decreetal property by any of the co-owners o r co-sharers would lead to multiplicity of proceedings. The second contention of Mr.Goswami is that since the appeal (RFA No.7/2 003) has already been disposed of by this Court and nothing remains pending in t his Court, no receiver can be appointed by this Court. We may point out that though a petition, seeking appointment of receiver , was pending at the time, when the appeal was dismissed, but no specific order was made on the application for appointment of receiver. Order 40 Rule 1 CPC ma kes it clear that where it appears to the Court to be just and convenient, the Court may, by an order, appoint receiver of any property, whether before or afte r decree. Though Order 40 does not require pendency of any suit, proceeding or appeal in order to enable the Court to pass an order for appointment of receiver , the fact remains that the appeal having already been disposed of, the decree, granted by the learned trial Court, has already merged into the appellate decree and when the matter is pending, now, in the learned Court below, it would be ap propriate for the applicant to make application for appointment of receiver in t he learned Court below. Considering the fact that there is no proceeding pending in this Court, this petition is disallowed. The applicant may make appropriate application, see king appointment of receiver, in the learned Court below as observed above. No costs.