The appointment of a receiver is a matter of judicial discretion, to be exercised considering the facts and circumstances of the case, the principles governing the appointment of a receiver, and the need to preserve the property and assets of the concern.

Tek Chand, J.

1. This is defendants appeal from the order of the trial Court passed under Or. 40 R. 1 of the Code of Civil Procedure directing the appointment of a receiver pending trial.

2. The facts giving rise to this litigation are that the plaintiff had instituted a suit claiming several reliefs against the defendants including specific performance of an agreement compelling the defendants to execute a deed of partnership, dissolution of partnership and alternatively for a decree for a sum of Rs. 1,20,000. The plaintiffs case is that he had advanced up to 8th of August, 1966, a sum of Rs. 85,000 to defendants 1 and 3. On 8th of August, 1966, two agreements were entered into between the plaintiff on the one side and Nihal Chand on behalf of himself and as mukhtiar-i-am of Parma Nand, his brother-in-law, admitting the plaintiff into partnership and acknowledging receipt of Rs. 85.000. The partnership was for running cinema business on land said to be owned by the defendants and funds to be supplied by the plaintiff. It was stated in the agreement of 8-8-1966 that the plaintiff had entered into partnership with Nihal Chand and Parma Nand for the cinema business and had been advancing from time to time a sum amounting to Rs. 85,000 for construction of the cinema building and for machinery etc. The share of the plaintiff is 0.30p in a rupee and the amount was advanced towards his contribution as partner. If within a month of the date of the agreement, a deed of partnership was not got executed and registered, then the plaintiff would have the right to recover the sum of Rs. 85,000 with interest at 12 per cent besides costs and damages. He also would have the right of getting the agreement specifically enforced. It was alleged by the plaintiff that he later on invested a further sum of Rs. 12,000. As the defendants would not recognise him as a partner and would not execute deed of partnership he sued for a declaration that he was partner in the firm to the extent of 0.30 P. in a rupee as his share and also sought perpetual injunction restraining defendants from running the concern and alienating the partnership property without his consent. This suit is still pending.

3. On 24th of August, 1967, the present suit was instituted. On the same date, an application was also made for the appointment of ad interim receiver. In their written statement, the defendants denied partnership and stated that the plaintiff had deposited a sum of Rs. 37,325 only by way of a loan. On 8.09.1966, the plaintiff was owed a sum of Rs. 39,500 only. The defendants maintained that the agreements of 8.08.1966, were later on cancelled and the plaintiff had relinquished all hip rights

4. The trial Court after hearing the parties confirmed its earlier ad interim order appointing Shri Udhmi Ram. Advocate, Narnaul as receiver as to the partnership property of Prabhat Talkies in dispute and its assets till further orders. As at the time of the passing of the order. Prabhat Talkies had not started running he fixed Rs. 60 per mensem as the fee of the receiver to be paid initially by the plaintiff and later to he ad justed as directed by the Court. This order has now been questioned in first appeal before me.

5. In allowing the application and pas-sing the order appointing receiver, the trial Court was influenced by the fact that the two agreements of 8th of August, 1966 set up by the plaintiff, stood tacitly admitted by the defendants and it was admitted in them that the plaintiff Ram Niwas was a partner in the concern having already invested Rs. 85,000 in it. Applying the test of appointment of a receiver in the case being just and convenient, the trial Court was influenced by the fact that the defendants did not deny the agreements of 8.08.1966, in which almost the entire case of the plaintiff was admitted and he was further influenced by the defendants denial of the plaintiffs status as owner as a circumstance in appointing receiver. The trial Court c