1. - This petition for the removal of Abdul Wahid as Receiver has been filed in this Court by the plaintiff of Original Civil Suit No.12 of 1978, Yusuf v. Hamidullah and others , which is pending in the Court of Additional District Judge No. 2, Jodhpur.

2. The Original Civil Suit was filed by the plaintiff for rendition of accounts etc. against the defendants on March 27, 1978, in the Court of District Judge, Jodhpur. On April 16, 1979, an application by the plaintiff was moved in the Trial Court for the appointment of a Receiver, but the same was dismissed by the Additional District Judge No. 2, Jodhpur, by the order dated March 31, 1980. Against this, the plaintiff filed an appeal in this Court. This Court, by the order dated January 5, 1982, allowed the appeal, set-aside the order of the Additional District Judge No. 2 and appointed Abdul Wahid (defendant No. 5), Non-petitioner No. 1, herein, as the Receiver. By the said order, the Receiver was required to comply certain conditions. The case of the petitioner is that the Receiver has committed breach of the order of this Court as also of the Trial Court and, therefore, deserves to be removed. This petition has been filed in this Court as the order of appointment the Receiver was made by this Court.

3. The non-petitioner No. 1 has raised a preliminary objection to the effect that this petition for his removal should have been filed in the Trial Court where the suit is pending. The application directly made to this Court is not maintainable.

4. The question for consideration is whether the application for the removal of the Receiver would directly lie to this Court or it should have been filed in the Trial Court where the original civil suit is being tried. There is a conflict of opinion in the High Courts on this point. Shri Mathur, counsel for the petitioner, has referred to the decisions of the Lahore High Court in Bihari Lal v. Shaular Das, AIR 1925 Lahore 309 , and of the Himachal Pradesh High Court in Seth Sunder Parshad v. Stale of Himachal Pradesh, AIR 1984 H.P. 9 . These Courts have taken the view that the application for removal shall lie before the Appellate Court which appointed the Receiver. Shri Jain, counsel for the non-petitioner has, on the other hand, relied on the decision of the Patna High Court in Kuar Jagdish Bahadur v. Ganesh Prasad, AIR 1953 Pat. 253 whether it was held that the application for the discharge of the Receiver must be made before the Lower Court. I may in this connection refer to the decision of the Supreme Court in State Bank of Saurastra v. Chitranjan Rangnalh Rajan, AIR 1980 SC 1528 , where the Supreme Court directed restitution to be initiated in the Court of first instance even though the decree passed by the Trial Court was reversed in appeal by the High Court and further the reversion was affirmed by the Supreme Court and in Krishna Singh v. Mathura Ahir , where the Supreme Court held that an application for stay of the execution could have been made before the Court of Munsif,Varanasi, which was the original Court. It was held:

"The suit, which was the subject matter of appeal was decided by the Munsif, Varanasi, who had passed the decree. Therefore, an application for stay of execution if any, could have been made before that Court and not before any other Court, including the Civil Judge."
Not that these cases arc direct on the point. They have been decided by referable to specific provisions in the C.P.C. Nonetheless, they indicate a trend and inconsistance on the matter being initiated in the Court of first instance.

5. My view accords with the one taken by the Patna High Court. This also finds support by a decision of the division bench of this Court in Fatuu Khan v. Abdul Wahid and others, D.B. Civil Writ Petition No. 2170 of 1988, decided on July 15, 1988 , where this Court held and observed:

"Learned counsel for the petitioner stated at the bar that the Receiver was appointed by the Court in the suit which is pen