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KERALA HIGH COURT
Thomas P. Joseph, J.
Mary —Petitioner
versus
Biju P. Sebastian —Respondent
WP (C) No. 18303 of 2010
Decided on 14.6.2010
Counsel for the Parties:
For the Petitioner:K. Mathew John (K), Advocate.
IMPORTANT POINT
Appointment of the receiver is a matter of judicial discretion intended to safeguard the rights of parties and that ends of justice are not defeated. A receiver cannot be appointed merely because it is expedient or convenient to one of the parties; instead, it must be “just and convenient” meaning thereby that it is just and convenient to both parties.
Headnote:Civil Procedure Code, 1908—Order 40, Rule 1—Appointment of receiver—Court is invested with discretionary jurisdiction to appoint a receiver only when it appears to court to be “just and convenient” to do so—Appointment of receiver is a matter of judicial discretion intended to safeguard the rights of parties and that ends of justice are not defeated—Appointment of receiver is one of the hardest remedy which law provides and remedy is available only in extreme cases and in circumstances where interest of person seeking appointment of receiver is exposed to manifest peril.
Held: In such a situation it is not made out why petitioners want a Receiver to take possession of the property. Their only grievance is that respondent has cut and removed one anjilee tree from the suit property (before the learned Munsiff issued an order of injunction against respondent committing waste in the suit property) which the respondent does not deny. There is no case for petitioners that the property is in danger of being wasted or damaged, that the property will be dissipated or other irreparable mischief may be done to the property unless a Receiver is appointed. Petitioners have no case that respondent has violated the order of injunction against him. That, respondent who claims title and possession over the suit property and at a time when there was no order of injunction against him has cut down a tree from the suit property on 22.2.2010, without anything more, does not make it ‘just and convenient” to appoint a Receiver for the suit property. Having regard to the facts and circumstances including that there is no case of violation of order of injunction against respondent committing waste in the suit property I am not satisfied that it is “just and convenient” to appoint a Receiver for the suit property.
Learned counsel apprehends that respondent might commit waste in the suit property in future. If it happens, petitioners are not without any remedy. If future events make it “just and convenient” to appoint a receiver, the court has the power to invoke its
jurisdiction. (Paras 8 & 9)
Result: Petition dismissed.
Thomas P. Joseph, J.—Petitioners are aggrieved as learned Munsiff has declined to appoint a Receiver for the suit property.
2. The Code of Civil Procedure, 1908 (for short, “the Code”) has invested with the court a discretionary jurisdiction to appoint a Receiver when it appears to the court “to be just and convenient” to do so. As the provision reads the discretionary jurisdiction arises only when it is shown that it is “just and convenient” to appoint a receiver. It is relevant to note how that expression came into the Code.
3. The Code of Civil Procedure, 1882 (for short, “the Code of 1882”) dealt with the power of Court to appoint a Receiver thus:
“Chapter XXXVI
Appointment of receivers
503. Whenever it appears to the court to be necessary for the realization, preservation or better custody or management of any property, movable or immovable, the subject of a suit, or under attachment, the court may by order:
(a) appoint a receiver of such property (and, if need be),
(b) remove the person in whose possession or custody the property may be from the possession or custody thereof;
(c) commit the same to the custody or management of such receiver; and
(d ) ……”
(emphasis supplied)
The law in England regarding appointment of a Receiver is stated in the Supreme Court of Judicature Act, 1873 (for short, “the Judicature Act”), Section 25(8) as under:
“A mandamus or an injunction may be granted or a Receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the court shall think just….” (emphasis supplied)
In the Code (of 1908) the relevant provision is as under:
“Order XL
Appointment of receivers
(1) where it appears to the Court to be just and convenient, the Court may by order:
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession, or custody of the property;
(c) commit the same to the possession, custody or management of the receiver;
(emphasis supplied)
The notable change brought into the Code (of 1908) which continues to be so even after the amendment, from the Code of 1882 is that the court is invested with the discretionary jurisdiction to appoint a Receiver only when it appears to the court to be “just and convenient” to do so while in the Code of 1882 the court had the power to appoint a Receiver when it appeared to be necessary for the realization, preservation or better custody or management of the property. The Supreme Court in Pyarelal v. State of Rajasthan, AIR 1963 SC 1094 has stated that the appropriate meaning of the word “appears” is “seems”. The expression “just and convenient” occurring in Order 40, Rule1 of the Code and which was not there in the corresponding provision (Section 503) of the Code of 1882 was adopted from the Judicature Act, 1873, Section 25(8) which I have extracted above. In the Judicature Act, Section 25(8) the expression used is “just or convenient”. In the Code (of 1908) in Order 40, Rule 1, the expression used is “just and convenient” Jessel, M.R. in Hedley v. Bates, (1879-80) 13 Ch. Div. 498 and Lindley, CJ. in Holmes v. Millage, (1893) 1 QB 551 have read the expression “just or convenient” occurring in the Judicature Act, Section 25(8) as “just and convenient”.
4. What is meant by “just and convenient”? The word, “just” is derived from the Latin word “justus” which came from the Latin word, “jus” which means “a right, more technically a legal right”. The word “just” is defined in Century Dictionary as “right in Law or ethics”. In the Standard Dictionary that word is defined as meaning “conforming to the requirements of right or positive law”. The word “convenience” means “suitability of a thing”. Fletcher Moulton, CJ. in Edwards & Co. v. Picard, (1909) 2 KB 903 has construed the expression “
