A second application for appointment of a Receiver is not maintainable when a similar application has been dismissed on contest and merits by the same Court.

( 1 ) THIS civil revision under S. 115 of the Code of Civil Procedure is directed against a judgment dated May 28, 1997 passed by the learned Additional District Judge, 1st Court at Alipore whereby the Misc. Appeal filed by the respondents against the order dated June 30, 1992 passed by Sri. S. L. Biswas, learned Assistant District Judge, 9th Court at Alipore was allowed and the aforesaid order dated June 30, 1992 was set aside.

( 2 ) PETITIONERS in the present civil revisional application are the plaintiffs in a suit filed in the year 1984 The suit is for partition and relates to the entire assets of the business being carried out under the name and style of 'dacca Cinema Cabin' at 56, Park Street, Calcutta. In this pending suit the plaintiff-petitioners filed an application under Order 40 Rule 1 (a) of the Code of Civil Procedure for appointment of a Receiver. Vide the order number 66, dated March 29, 1988 the learned Assistant District Judge seized of the aforesaid suit dismissed the application of the petitioners-plaintiffs by holding that on proper consideration of the circumstances it was not just and convenient to appoint any Receiver in respect of the suit property and the buisiness.

( 3 ) I have seen that order and I find that it was passed by the learned Asstt. District) Judge on contest and it is an elaborately speaking and very well-reasoned one. Against this order a Civil Misc. appeal was filed by the plaintiff-petitioners in this Court being F. M. A. T. No. 2690 of 1988 (F. M. A. 178 of 1996 ). A Division Bench of this Court vide judgment and order dated June 15, 1999 summarily dismissed the appeal in terms of Order XLI, Rule 11 of the Code of Civil Procedure but however observing that such dismissal should not influence the outcome of the present revisional application.

( 4 ) EVEN while the aforesaid civil Misc. Appeal (F. M. A. T. 2690 of 1988 FMA 178 of 1996) was pending in this Court (curiously enough no steps were taken for almost eleven years for having this appeal listed for consideration for being admitted under O. XLI, Rule 11 of the Code of Civil Procedure), a new application was filed by the plaintiff-petitioners before the learned trial Court once again under Order 40, Rule 1 of CPC for appointment of a Receiver. Vide Order dated June 30, 1992 (supra) Sri S. L. Biswas, Learned Assistant District Judge, 9th Court at Alipore who was at the relevant time was seized of the suit allowed this application of the petitioner-plaintiffs and appointed one smt. Subhra Das, a learned Advocate as Receiver with certain directions upon her. It was this order which was challenged by the respondents before the learned Additional District Judge, 1st Court at Alipore, who vide the judgment and order dated May 28, 1997 allowed the appeal and set aside the order of the learned Assistant District Judge.

( 5 ) I have heard the learned Advocates for the parties and considered their rival contentions. This revision petition deserves to be dismissed only on one ground. The ground is that it was not open to the learned trial Court to have allowed, even entertained a fresh application for appointment of a Receiver in the year 1992 when a similar application of the petitioner-plaintiffs was dismissed on contest and on merits by the same Court in the year 1988 through the medium of a reasoned and speaking order. The maintainability of the second application for the same relief was patently barred on the principles of res judicata. The second application might have been maintainable, had the petitioner-plaintiffs brought to the notice of the learned trial Court certain new facts which had occurred) after the dismissal of the first application. Admittedly,no such new facts were either alleged or mentioned in the second application. Admittedly, the second application was not at all based on any new facts, but was squarely based only on such facts which had formed the subject-matter of the first application.