1. - This civil misc. appeal is directed against the order dated 03.01.2012 passed by learned District Judge, Jaisalmer in Application No.20/2009 filed under Section 40 of the Civil Procedure Code, whereby the learned trial court allowed the application.

2. The brief facts of the case giving rise to the present appeal are that the respondent No.1 Eklavya Singh filed a suit before the learned District Judge, Jaisalmer. In the suit it was contended by respondent-plaintiff Eklavya Singh that he was partner of the firm M/s. Lakha Granites. It was averred that his partnership was terminated in a fraudulent manner. He sought settlement of his accounts and also sought relief for treating him to be continuing partner of the firm M/s. Lakha Granites. The respondent No.1 Eklavya Singh filed suit in his personal capacity as well as in the name of M/s. Lakha Granites by showing himself to be partner of the firm. The defendants raised objection before the trial court that the suit was not maintainable on behalf of the firm and that too at the behest of Eklavya Singh, who retired way back in the year 2005.

3. Along with the suit, two applications were filed by the plaintiff on 09.07.2009. In the first application bearing No.19/2009, the plaintiff made prayer for temporary injunction under Order 39 Rule 1 and 2 Civil Procedure Code. The second application under Order 40 Civil Procedure Code was filed for appointment of receiver.

4. The present appellants submitted written statement and denied the contentions raised by the respondent in his plaint. Reply to the applications No.19/2009 and 20/2009 was also filed. The counsel for the appellants also submitted written arguments and judgments in support of the arguments before the trial court.

5. After hearing both the parties, the learned trial court rejected the application for grant of temporary injunction filed under Order 39 Rule 1 and 2 Civil Procedure Code. However, the application filed under Order 40 Civil Procedure Code was allowed vide the impugned order dated 03.01.2012. Being aggrieved by the said order, the present civil misc. appeal has been preferred.

6. The learned counsel for the appellants contended that the order dated 03.01.2012 passed by the learned trial court on the application under Order 40 Civil Procedure Code is erroneous, therefore, the same deserves to be set aside on this count alone. It is submitted that before passing the impugned order, the learned Judge has not properly appreciated the written arguments as well as the judgments placed by the counsel for the appellants and even the arguments raised by the counsel for the appellants were not properly considered before passing the impugned order, thus, the learned trial court has grossly erred in allowing the application for appointment of the receiver.

7. The learned counsel for the appellants further contended that the application under Order 40 Civil Procedure Code as well as the suit was not maintainable on behalf of the firm M/s. Lakha Granites through its alleged partner Eklavya Singh. Eklavya Singh was not partner of the firm on the date of filing of the suit as well as the application and even learned trial court agreed to this preposition that till the claim of the plaintiff No.2 is settled, he cannot be treated as partner of the firm. That being the position, the learned trial court should not have entertained the suit as well as the application under Order 40 Civil Procedure Code. It is contended that the application suffers from inherent defect of misjoinder of parties, but the learned trial court has not considered this aspect, therefore, the impugned order deserves to be quashed and set aside.

8. The learned counsel for the appellants further contended that the learned District Judge has passed the impugned order of appointment of receiver without considering the conduct of the respondent. It is contended that the conduct of the parties is one of the most important factor which is to be taken into c