Rabbia Umma V. Noordeen Et Al.,

1939     Present: Keuneman and Wijeyewardene JJ.

RABBIA UMMA v. NOORDEEN et al      

32-D. C. Colombo, 9,327. 

Receiver-Application made to protect interest of plaintiff-Object of appointing receiver-Protection of property-Defendant in possession- Civil Procedure Code, s. 671.

Where, in an action for the recovery of a half share of the rents and profits of certain premises, the plaintiff applied for the appointment of a receiver under section 671 of the Civil Procedure Code,-

Held, that the plaintiff was not entitled to have a receiver appointed to protect his pecuniary interests.

A receiver is appointed for the protection of the property itself.

Where a right is asserted to property in the possession of a defendant claiming to hold under a legal title, a Court will not interfere with the possession by appointing a receiver unless a very strong case is made out.

THIS was an action instituted by the plaintiffs to recover a sum of Rs. 2,600 and Rs. 200 per month, being half share of the rents and profits of certain premises in the Second Cross street, Pettah. On the same day as the plaint the plaintiffs filed petition and affidavit

 praying for the appointment of a receiver for the custody, management and preservation of the rents, the subject-matter of the action. The learned District Judge allowed the application.

H. V. Perera, K.C. (with him F. A. Tisseverasinghe, L. A. Rajapakse, and P. Thiagarajah), for defendant, appellant.-A receiver is not appointed in an action of this kind. The learned District Judge misdirected himself on the facts. No interlocutory order has been entered in the partition action which is pending.

The District Judge was asked to use his discretion. He exercised that discretion wrongly where he based his finding on wrong facts.

The plaintiffs should definitely prove that under section 671 of the Civil Procedure Code they had established a prima facie right to or interest in the premises. They have failed to do so.

The defendants are in possession of the property and their possession should not be disturbed.

A receiver can only be appointed for the restoration, preservation, better custody, or management of any property. This necessity has not arisen. (Corbet v. The Ceylon Co., Ltd. [14 S.C. C. 143.]

Appointment of a receiver would be to prejudge the case and prejudice the defendants (Seyadoris v. Hendrick  [2 2 C. L. R. 767.] ).

N. E. Weerasooria, K.C. (with him C. E. S. Perera and Dodwell Goonewardene), for plaintiff, respondent.-Receivers are appointed for the better management of property-Section 671 of the Civil Procedure Code. It is true the District Judge has misstated a fact, namely, the entering of an interlocutory order. There is sufficient evidence on record apart from this to appoint a receiver.

Once the District Judge has used his discretion that should not be interfered with lightly.

The defendants are collecting rents due to us. The decision in the Partition case depends on the construction of a will. There is a fidei commissum.

In Sideswari Dabi v.

Click Here to Read the rest of this document