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2021 Supreme(AP) 109
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
U. DURGA PRASAD RAO, J.
Vedicherla Aruna and others - Petitioners
Vs.
Gonu Srinivasulu and others - Respondents
CIVIL REVISION PETITION No. 284 of 2021
Decided On : 15-03-2021
For The Appellant : Sri S. Subba Reddy
Point of law: A receiver, having regard to the provisions contained in Order 40 Rule 1 of the Code of civil Procedure, is appointed only when it is found to be just and convenient to do so. Appointment of a receiver pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint a receiver save and except on a prima facie finding that the plaintiff has an excellent chance of success in the suit
Headnote:
Code of Civil Procedure, 1908 – Order 26 Rule 10-B r/w 151 – Permanent Injunction – Appointment of an Advocate Commissioner – Plaintiffs filed O.S. against the defendants seeking permanent injunction in respect of plaint schedule property – In I.A. the trial Court granted interim injunction in favour of the plaintiffs. – There upon, the plaintiffs filed I.A. with the averments that even after receiving the injunction order, the defendants are trying to interfere with the agricultural operations conducted by the plaintiffs and with much difficulty, the plaintiffs could carry on the agricultural operations and the paddy is now ripe for harvest within twenty days and the defendants are proclaiming in the village that they will harvest the crop raised by the plaintiffs at any cost and if they are permitted to do so, the plaintiffs will be put to much hardship. – On these pleas, the plaintiffs prayed for appointment of an Advocate Commissioner to harvest the paddy crop raised by them in the plaint schedule property, auction the same and deposit the sale proceeds in the suit account.
Finding of court: When the above jurimetrical jurisprudence is applied to the instant case, no doubt the petitioners/plaintiffs have not specifically prayed for appointment of a receiver, but as observed supra, the pleadings are indicative of such a prayer. – However, since the plaintiffs by virtue of the interim injunction order are in possession and as the respondents/defendants did not challenge their possession and sought for vacating the interim order, there can be no just and convenient reason for appointment of an Advocate Commissioner. – No imminent danger of waste or damage to the subject property is surfacing on the record. – In these circumstances, the trial Court, in my considered view, has rightly rejected the prayer of the petitioners/plaintiffs. – Not only that, the trial Court has aptly held that if at all the plaintiffs are apprehending danger, they are at liberty to seek for appropriate relief to harvest the crop, meaning thereby, the petitioners can seek for police aid. – If such a petition is filed, the trial Court shall conduct due enquiry and pass an order on merits.
Result: Civil Revision Petition Dismissed
U. DURGA PRASAD RAO
CIVIL REVISION PETITION No.284 of 2021
ORDER:
Aggrieved by the order dated 03.03.2021 in I.A.No.93 of 2021 in O.S.No.221 of 2020 on the file of the Principal Junior Civil Judge, Gudur, Nellore District, dismissing the petition filed under Order 26 Rule 10-B r/w 151 C.P.C for appointment of an Advocate Commissioner to harvest the paddy crop raised in the plaint schedule property, auction the same and deposit the sale proceeds in the suit account, the instant C.R.P. is filed by the petitioners/plaintiffs.
2. The plaintiffs filed O.S.No.221 of 2020 against the defendants seeking permanent injunction in respect of plaint schedule property. In I.A.No.492 of 2020 the trial Court granted interim injunction in favour of the plaintiffs. There upon, the plaintiffs filed I.A.No.93 of 2021 with the averments that even after receiving the injunction order, the defendants are trying to interfere with the agricultural operations conducted by the plaintiffs and with much difficulty, the plaintiffs could carry on the agricultural operations and the paddy is now ripe for harvest within twenty days and the defendants are proclaiming in the village that they will harvest the crop raised by the plaintiffs at any cost and if they are permitted to do so, the plaintiffs will be put to much hardship. On these pleas, the plaintiffs prayed for appointment of an Advocate Commissioner to harvest the paddy crop raised by them in the plaint schedule property, auction the same and deposit the sale proceeds in the suit account.
3. The defendants filed the counter and opposed the petition. They contended that there is an injunction order in favour of the plaintiffs and they are supposed to be in possession of the plaint schedule land. Hence, in such circumstances, the petition to appoint an Advocate Commissioner to harvest the crop and deposit the sale proceeds, under Order 26 Rule 10-B r/w Section 151 CPC, is not maintainable.
4. The trial Court having heard both sides, dismissed the petition on the observations that the Court having regard to the record, granted ad interim injunction on 07.12.2020 and so far, the respondents/defendants did not file counter in I.A.No.492 of 2020 nor filed any application to vacate the injunction order and as such, the plaintiffs are presumed to be in possession of the suit schedule property. In that view, the allegations of the petitioners that the respondents are proclaiming in the village and they will harvest the crop is only an apprehension. When the injunction order is in force, the question of apprehending danger will only be a mere apprehension on the part of the plaintiffs particularly, when the respondents/defendants did not dispute the possession of the plaintiffs. The trial Court further observed that if at all the petitioners/plaintiffs apprehend any danger, they are at liberty to seek appropriate relief to harvest the crop. Without availing such remedy, they straight away filed the petition to appoint an Advocate Commissioner. The trial Court ultimately held that there were no valid reasons to allow the petition and accordingly, dismissed the application.
Hence, this CRP.
5. Heard learned counsel for the petitioners, Sri S. Subba Reddy, and having regard to the facts involved in this case, I find no exigency to order notice to the respondents. Therefore, this C.R.P is disposed of at the admission stage.
6. At the outset, it must be said that the order of the trial Court is impregnable, as there is neither irregularity nor illegality in the order impugned. As rightly observed by the trial Court, having found prima facie possession of the petitioners/plaintiffs emanating from the records produced, the trial Court by its order dated 07.12.2020 granted ex parte ad interim injunction in favour of the petitioners/plaintiffs. Subsequently, the respondents/defendants appeared, but they neither filed counter in I.A.No.492 of 2020 nor filed a petition to vacate the ad interim injunction order. Therefore, till da
