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2023 Supreme(Online)(KER) 11813
HIGH COURT OF KERALA
C.S. DIAS, J
K. SHARADA – Appellant
Versus
N.J.HANAS – Respondent
OP(C) 1927 2020
V.V.SURENDRAN, SRI.P.A.HARISH, SRI.NIRMAL V NAIR, SRI.P.B.KRISHNAN, SRI.P.B.SUBRAMANYAN, SHRI.AKHIL ALPHONSE G, SRI.SABU GEORGE, SMT.MEERA P, SRI.MANU VYASAN PETER, SMT.B.ANUSREE
A party that requests a stay and appointment of a Receiver cannot later claim exemption from obligations incurred under that order when they lose in subsequent appeals.
Headnote:
Receiver - Execution of Decree - Code of Civil Procedure, 1908 - Order 40 - The appointment of a Receiver was justified and required as per the directions given by the higher court, to manage the property while ensuring remuneration is paid as per provisions.
Fact of the Case:
Respondents filed a suit for possession, which was confirmed in appeal. Petitioners sought a stay on execution and the court appointed a Receiver. Respondents filed for the Receiver's remuneration, leading to this challenge by the petitioners.
Finding of the Court:
The court found no errors in the execution of the decree and the appointment of the Receiver. The remuneration was deemed valid since it was ordered in the context of the petitioners wanting to stay execution.
Issues: Whether there was any error in the execution court's order appointing the Receiver and directing payment of remuneration by the petitioners.
Ratio Decidendi: The petitioners, seeking to stay execution, consented to the Receiver's appointment and cannot later contest their obligations under that arrangement after an unsuccessful appeal.
Final Decision: The original petition dismissed; liberty granted to seek clarification in the disposed appeal.
J U D G M E N T
Challenging Ext P2 order passed in E.P.No.52/2017 by the Court of the Subordinate Judge, Sultan Bathery,(Trial/Execution Court) the judgment debtors in the execution petition have filed the original petition. The respondents are the decree holders.
2. The brief and relevant background facts leading to Ext P2 order are:
(i) The respondents 2 and 3 had filed O.S.No.285/2011 before the Trial Court, against the petitioners, for recovery of possession of the plaint schedule property.
(ii)The suit was dismissed by the Trial Court and the decree was confirmed in A.S.No.9/2017 by the Court of the District Judge, Kalpetta(lower Appellate Court).
(iii)Assailing the concurrent decrees, the petitioners filed R.S.A. No. 364/2019 before this Court.
(iv)Along with the Second Appeal, the petitioners filed I.A.1/2019 to stay the execution of the decree.
(v) By Ext P1 order dated 10.04.2019, this Court ordered the appointment of a Receiver, by the Trial Court, by ensuring that the provisions of Order 40 Rule 3 of the of the Code of Civil Procedure, 1908 ,(in short, 'Code'),are complied with.
(vi)In the interregnum, the respondents 2 and 3 filed E.P.No.52/2017 before the Execution Court.
(vii)As directed in Ext.P1 order, the Execution Court, by Ext.P2 order, appointed the first respondent as the Receiver and directed the petitioners to pay Rs.9,000 per month as the Receiver’s remuneration.
(viii)In the meantime, the respondents 2 and 3 had filed I.A.Nos. 1 & 2/2020 to permit them to withdraw an amount of Rs.50,000/- deposited by the first respondent and also to cut and remove the trees that fell down. The applications were allowed by the Execution Court by Exts P3 and P4 orders.
(ix)Later, the first respondent filed E.P.No.27/2020 before the Execution Court, to realise his remuneration by the arrest and detention of the third petitioner.
(x)Ext P2 order is erroneous and unjustifiable.
Hence, the original petition.
3. Heard; Sri. P.A.Harish, the learned Counsel appearing for the petitioners, Sri. Nirmal V. Nair, the learned Counsel appearing for the first respondent and Sri. S.V. Balakrishna Iyer, the learned Senior Counsel appearing for the respondents 2 and 3.
4. The question is, whether there is any error in Ext.P2 order?.
5. O.S.No.285/2011 filed by the respondents 2 and 3 was decreed in their favour. The decree was confirmed by the lower Appellate Court by the dismissal of A.S.No.9/2017.
6. Challenging the concurrent decrees, the petitioners filed R.S.A. No. 364/2019 before this Court. Along with the Second Appeal, the petitioners filed I.A.No.1/2019, to stay execution of the decree.
7. When the stay petition came up for consideration, this Court, after considering the rival pleadings and contentions, directed the Execution Court to appoint a Receiver to manage the plaint schedule property.
8. Sri. S.V. Balakrishna Iyer was right in his submission that, it was at the instance of the petitioners, who wanted to stay the execution of the decree, that the Receiver was appointed, otherwise the possession of the property would have been delivered to the respondents 2 and 3.
9. Rules 1 and 2 of Order 40 of the Code deals with the appointment of Receivers and the payment of their remuneration.
10. This Court relegated the appointment process of the Receiver to the Execution Court, with a rider that the Receiver discharges his duties as laid down under Rule 3 of Order 40 of the Code.
11. The Execution Court appointed the first respondent as the Receiver and fixed his remuneration at Rs.9,000/- and directed the petitioners to pay the said amount.
12. The petitioners grumble that the direction is onerous and unreasonable because the remuneration has to be realised from the estate and not from a party.
13. Nevertheless, the petitioners did not choose to seek for any clarification from this Court in the Second Appeal, instead has challenged the order in the present original petition.
14. Sri. Nirmal V. Nair drew the attention of this Court to the counter af
