The court upheld the appointment of a receiver to safeguard property amidst ongoing litigation, emphasizing the need for preservation and the authority to declare transactions void in case of injunction breaches.

ORAL ORDER

1. This petition is filed under Article 227 of the Constitution of India praying to quash and set aside the order dated 12.2.2024 passed the learned Judge, Court No.22, City Civil Court, Ahmedabad in Application below Exhibits 28, 29, 53 and 130 in Civil Suit No.767 of 2005, whereby the learned Court below has appointed Court Receiver and has directed to attach the suit property and has further directed the Court Receiver to receive the suit property de jure.

2. The brief facts leading to filing of this petition, as stated in the memo, are as under:

2.1 The petitioners are third parties. The suit is filed by the respondent no.1 seeking decree of specific performance of the agreements to sale dated 13.8.1997 and 5.8.2003 respectively which were executed with the respondent nos.2 to 5 herein, with respect of land bearing survey number 330 admeasuring 7183 sq.mtrs. of village Hansol or in the alternative, sought for Rs.1,27,04,967/- as damages and also refund of Rs.45,324/- paid as part payment with interest at the rate of 18%. That the defendants in the said suit gave applications below Exh.16 on 4.5.2005 praying to grant adjournment for filing reply to the suit and till the time reply is filed, they would not transfer the suit property, under which there is no order passed below on basis such assurance given by the advocate and only order of granting date was passed; that thereafter the petitioners purchased the suit land by way of registered sale deed dated 15.9.2005 and the same was registered before sub-registrar on 15.9.2005; that the defendants did not disclose about the pendency of the said suit; that the plaintiff submitted an application at Exhs.28 and 29 for breach of injunction under Order 39 Rule 2A of CPC against the defendants, wherein vide order dated 24.8.2006, the chamber summons was allowed and issued upon the defendants to remain present in the Court personally and to explain why the property in question should not be attached., against which the defendants filed Appeal From Order No.69 of 2008 whereas the petitioners filed Appeal From Order No.79 of 2008, which were withdrawn by the respective appellants on 19.11.2009; that the notice was issued upon the petitioners to show cause as to why the property in question should not be attached; that the petitioners filed application Exh.53 seeking copies of the applications filed by the plaintiff and all documents filed in the suit; that the reply was filed vide Exh.58 by the petitioners pointing out that the petitioners are bonafide purchasers and are in possession of the suit property and no attachment be ordered; that thereafter after a long gap in the year 2023, the plaintiff preferred application below Exh.130 seeking appointment of Court Receiver under Order 40 Rule 1 of CPC; the defendants filed reply to the said application; that the petitioners were never served with the copy of the said application at Exh.130; that the arguments were advanced on behalf of the petitioners that the application would not be maintainable in absence of the petitioners being joined; that the petitioners also made a statement that they will not transfer the suit property till the suit is heard; that the impugned order is passed on 12.2.2024; that the petitioners submitted applications at Exh.135 seeking stay of the said order which was granted and the order was stated for one month. Hence, this petition is filed.

3. Heard learned advocates for the parties.

3.1 Learned senior advocate Mr.Joshi for learned advocate Mr.Desai for the petitioner has submitted that the Court has committed gross error in passing the impugned order below Exhs.28, 29, 130 and 53 in Civil suit No.767 of 2005 by not considering the fact that no ingredients under the provisions of Order 40 Rule 1 and 2 of the CPC are satisfied as there is no eminent danger or any probability to change in possession of the parties in absence of that, the said order passed pursuant to the various applications is not just