ORDER
Jagadeesan, J.
1. The 12th defendant in O.S. No. 133 of 1996 on the file of Sub Court, Trichy, has filed this revision challenging the order of the lower court in I.A. No. 202 of 1996, whereby an ex parte interim receiver was appointed.
2. The respondents 1 and 2 have filed the suit for dissolution of the partnership known as Srinivasa Transport’ (Firm), for rendition of accounts by the third defendant in the said suit, for permanent injunction restraining the defendants 12 and 13 from alienating the buses bearing Registraiion Nos. T.U.C. 9991, T.D.G. 555 and T.A.Y. 977 and for other consequential reliefs. The plaintiffs have filed the suit contending that the plaintiffs and defendants 1 to 11 are partners of the partnership firm and the partnership was entered on 1.12.1992. As per the terms of the partnership deed, the third defendant is the Managing Director of the partnership-firm. The third defendant in collusion with, the first and second defendants, who are his father and mother, had alienated the permits and the Registration Certificate relating to the aforesaid three buses belonging to the partnership firm in favour of one Sri Srinivasa Transport (Firm) in which defend the 12 and 13 are partners. The 12th defendant is the wife of the third defendant and 13th defendant is his sister-in-law. The plaintiffs came to know about the illegal transfer on 16.2.1996. Since the third defendant had acted against the interest of the partnership concern, the suit for dissolution has been filed and along with the plain, I.A. No. 202 of 1996 for appointment of interim receiver was also filed.
3. In support of the application for appointment of receiver, the petitioners have filed the affidavit in which the plaintiffs have stated that the third defendant had illegally transferred the permits and the plaintiffs came to know about the same only on 16.2.1996. It is further stated in the affidavit that the plaintiffs understood that the third defendant has committed manipulation of accounts and has transferred the liquid assets and other assets in favour of the said Sri Srinivasa Transport (Firm) and there is gross concealment of income belonging to the partnership firm Srinivasa Transport (Firm) of which the plaintiffs and defendants 1 to 11 are partners. The plaintiffs apprehend that they will be put to colossal hardship and irreparable injury. The defendants 12 and 13 are attempting to alienate the aforesaid buses to other parties and if the attempts on their part materialise, the plaintiffs and other partners will be put to irreparable loss and hardship.
4. On the basis of the averments, the trial court had appointed ex parte interim receiver by order dated 23.2.1996 on the date on which the plaint was presented The petitioner has filed this revision under Article 227 of the Constitution of India, challenging the ex parte order of appointing the interim receiver.
5. The counsel for the petitioner contended that even though an appeal has been provided under 0.43, Rule 1, C.P.C. the petitioner has to wait to prefer the appeal till she gets the certified copy of the fair and decretal order in I.A. No. 202 of 1996. Without the certified copy of the decree, appeal cannot be preferred. Before even the certified copy of the fair and decretal order is made available to the petitioner, the order of appointing ex parte interim receiver will be given effect to; whereby the petitioner will be deprived of the management of the buses. Once the order is given effect to, then there is no purpose in filing the appeal, as the same may become infructuous. Hence, the revision under Article 227 of the Constitution of India has been filed in order to get justice. Further the learned Counsel for the petitioner contended that it is not a case where an ex parte interim receiver is required. The business is a running concern and the buses had been transferred in the name of 12th and 13th defendants i.e., the petitioner herein and her sister as early as 1994. The plaintiffs have sought for the appointment of receiver on the ground that they came to know about the transfer in favour of the defendants 12 and 13 only on 16.2.1996 and these defendants are trying to further alienate the property and if the alienation is made, the plaintiffs along with other defendants will be put to loss. The transfer had been made as early as 1994 and when two years had been elapsed, now the defendants 12 and 13 cannot be deprived of the enjoyment of the property by ex parte order of appointing interim receiver.
6. The respondents 1 and 2 who are the plaintiffs have filed caveat and took notice when the revision came up for admission. The counsel for the respondents 1 and 2 insisted for the disposal of the revision itself on the ground that the bus bearing Registration No. T.C.U. 9991 had been taken custody by the receiver on 7.3.1996 and so far as the other two buses are concerned, the receiver is not able to take custody of the same, as the ex parte interim receiver had been appointed, some of the respondents in I.A. No. 202 of 1996 had filed counter and the petitioner herein can also file here counter in the said I.A. and the lower court may be directed to dispose of the said I.A. finally on merits by stipulating some time and till then status quo may be maintained i.e., the custody of the bus bearing Registration No. T.C.U. 9991 to be remained with the Advocate Receiver and the other two buses are concerned they can be remained with the petitioner. The learned Counsel further contended that the revision under Article 227 of the Constitution of India is not maintainable, as the Code of Civil Procedure provides the appeal. When the alternative remedy of statutory appeal is available, the constitutional remedy cannot be sought for.
7. I have heard both the counsel. The issues involved in this revision are:
(i) Whether the revision is maintainable?
(ii) Whether the order of appointing an ex parte interim receiver is liable to be set aside?
8. Issue Nos.(i)&(ii): Order 43, Rule 1 (s), C.P.C. provides for an appeal against an order under Rule 1 of Rule 4 of Order 40. The present order of the lower court is only under Order 40, Rule 1. Whether it is an ex parte interim receiver or interim receiver after hearing the parties, would fall only under Order 40, Rule 1, C.P.C. Hence, the question to be decided is whether because of the alternative remedy, the present revision is not maintainable under Article 227 of the Constitution of India.
9. As per Article 227 of the Constitution of India, the High Court shall have superintendence over all courts and the power of ‘superintendence’ is not confined to ‘administrative superintendence’ only, but includes the power of judicial revision also. The High Court is entitled to exercise the power where the lower court assumes erroneous jurisdiction or excess of jurisdiction, where the lower court refuses to exercise its jurisdiction, where an error apparent on the face of the record as distinct from a mere mistake of law or error of law relating to jurisdiction exists, where the violation of principles of natural justice is involved and where there is arbitrary or capricious exercise of authority or discretion. These incidents are not exhaustive but only certain examples. Equally, the power under Article 227 of the Constitution of India cannot be exercised in cases to correct erroneous exercise of jurisdiction or to interfere with the intra vires exercise of discretionary power. Hence, to exercise power under Article 227 of the Constitution of India, this Court has to find out at the outset whether the exercise of power by the lower court is intra vires exercise of discretionary power since the power given to the lower Court under Order 40, Rule 1, C.P.C, is totally a discretionary one.
10. It is well-settled that the discretionary power given to the court has to be exercised in a judicial manner and it cannot be exercised in an arbitrary manner. To consider whether the power has been exercised in a judicial manner or arbitrary manner, the court has to necessarily take into consideration the facts’ and circumstances under which the court below exercised its discretionary power. The facts and circumstances are the only basis to find out the nature of exercise of power by the lower court and if it is found that the lower court, under the given facts and circumstances had exercised its power in an arbitrary manner, then this Court can interfere under Article 227 of the Constitution of India.
11. With regard to the exercise of power under Article 227 of the Constitution of India, the Supreme Court had dealt with two cases reported in: (1) Umaji v. Radhikabhai and (2) Mani Nariman Daruwala v. Phiroz N.Bhatena , as follows:
In Umaji v. Radhikabai A.I.R. 1986 S.C. 1272, the Supreme Court has observed at page 1317 as follows:
Under Article 226 the High Court have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has the power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corps or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the state. The power of superintendence conferred upon every High Court Article 227 is a supervisory jurisdiction intended to ensure that Subordinate Courts and Tribunals act within the limits of their authority and according to law. The orders, directions and writs under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in additional to that conferred upon the High Courts by Article 226. Though at the first flush it may seem that writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.
In the very same judgment, the scope of the power of this Court under Article 227 of the Constitution has been succinctly put at page 1318 as follows:
It is equally well settled in law that a proceeding under Article 227 is not an original proceeding. In this connection, we need refer to only two decisions of this Court. In Ahmedabad MFG & Caligo PTG Co. Ltd. v. Ramtahel Ramnand this Court said:
Article 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary court of appeal. The material part of this Article substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by this Article to Tribunals as well. Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction. The power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors; see Waryan Singh v. Amur Nath . Under Article 226 of the Constitution it may in this connection be pointed out the High Court does not hear an appeal or a revision; that court is moved to interfere after bringing before itself, the record of a case decided by or pending before a court, a tribunal or an authority, within its jurisdiction.” The original and nature of the power of superintendence conferred upon the High Court by Article 227 was thus stated by this Court in Waryam Singh v. Amaranth .
It reads as follows:
The material part of Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the article also to tribunals. The only question raised is as the Article. Reference is made to Clause (2) of the article in support of the contention that this article only confers on the High Court administrative superintends over the subordinate Courts and tribunals. We are unable to accept this contention because Clause (2) is expressed to be without prejudice to generally of the provisions in Clause (1). Further, the preponderance of judicial opinion in India was that Section 107 which was similar in terms to Section 15 of the High Courts Act, 1861, gave a power of judicial Superintendence to the High Court apart from and independence of the provisions of other law centering revisional jurisdiction on the High Court. In this connection, it has to be remembered that Section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as Section 224. Section 224 of the 1935 Act, however, introduced Sub-section (2) which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Court referred to above. Section 224 of the 1935 Act has been omitted from Article 227. This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under. Section 15 of the High Courts Act 1961, and Section 107 of the Government of India Act, 1915….
Recently, the Supreme Court in Mani Naritnan Daruwala v. Phiroz N. Bhatena , consider the scope of Article 227 of the Constitution of India observed as follows: (at p. 143):
In the exercise of jurisdiction under Article 227 of the High Court can set aside or ignore the findings of fact of an inferior Court of Tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the court or tribunal has come to, or in other words it is a finding which was perverse in law. Except to the limited extent indicated above the High Court has no jurisdiction to interfere with the findings, of fact….
Considering the above decisions, with regard to the scope of power of this Court under Article 227 of the Constitution of India, to interfere with any orders of the subordinate Courts, it is to find out whether the lower court had exceeded its bounds and if necessary to keep it within the bounds of their authority, this Court has to interfere with the order of the lower court.
12. The lower court has passed an ex parte of appointing an interim receiver on the basis of the arguments of the counsel for the petitioner. There is absolutely no application of mind on the part of the lower court. The lower court has extracted the averments made in the affidavit and stated as follows:
For appointment of a Receiver, even after hearing both the parties, this Court has held in Krishnaswamy v. Thangavelu , that the following five requirements have to be fulfilled.
1. The appointment of a receiver pending a suit is a matter resting in the discretion of the court.
2. The court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit.
3. Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration.
4. An order appointing a receiver will not be made where it has the effect of depriving a defendant of a ‘de facto’ possession since that might cause irreparable wrong. It would be different where the property is shown to be ‘in medio’, that is to say, in the enjoyment of no one. And
5. The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.
The basic principle for appointment of the receiver in order to dispossess a person who is in possession and enjoyment of the property, have been clearly laid down in the above judgment.
13. In yet another judgment reported in Subbalakshmi v. Rajalakshmi Ammal (1988)2 M.L.J. 330, this Court has reiterated that these five principles have to be complied with and also referred to the decision in Dozier v. Logan 101 Ga. 173 (32) rendered by Atkinson, J., wherein it is observed as follows:
The appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the creditors is exposed to manifest peril.
In the present case, there is no material to hold that the interest of the respondents herein is exposed to any such manifest peril so as to appoint a receiver.
14. This Court has held in a case reported in Chinnanarayanan v. Sree Shyam Sayee Corporation, 1991 T.LN.J. 203, considering the question of appointment of receiver for a running concern, as follows:
But in so far as the application for the appointment of a receiver is concerned, admittedly, the theatre complex is a running concern deriving daily collections and it is in the actual management and administration of the respondents herein and that there was no imminent danger to the building of the theatre complex or the land in question either by way of imminent waste or danger by the respondents herein who are admittedly, in possession of the same. Accordingly, it is a running business concern. It is true that the allegation of the plaint was that except one or two part payments, nothing has been paid on behalf of them and that they have suspended the payment of the loan amounts due to the plaintiff and that was the reason why the plaintiff has filed the suit for the necessary relief. Further, it was true that the title deeds of the theatre complex were deposited with the plaintiff by way of equitable mortgage and that on that score also, heavy amount is due according to the plaintiff. It was alleged by the plaintiff that there are several creditors who contemplating to take legal actions against the respondents herein for the recovery of the loan amounts. He has not enumerated the details of the creditors, though some names were given in the additional affidavit filed by him, but significantly, it has to be seen that except the plaintiff, no one has come forward with the suit for recovery of any amounts from the respondents so far. The relief asked for in this application is not one under the Indian Partnership Act or Insolvency Act though the applicant/plaintiff has referred to the insolvency proceedings against the respondents. In this context. I am of the firm view that even if the amount claimed in the suit is due by the respondents herein, it is open for him to take the appropriate steps against the property in question, viz., the theatre complex as provided under the Code of Civil Procedure for the immediate relief. The other significant aspect of this case is that the applicant/ plaintiff has got all the title deeds of the properties in question in his custody over an equitable mortgage created by the respondents herein. Therefore, I am able to see that except expressing his mere apprehension that the collections are being wasted in the theatre complex by the respondents, no other averments or materials are placed by the plaintiff in support of his petition or his plaint. The basic norms as enunciated by the case laws herein before referred to, have not been followed and that those aspects are totally lacking in this case….
15. If the above well laid principles are taken into consideration, I am sure that the ex parte order of appointing an interim receiver has been passed by the trial court, totally contrary to the said principles. The averment of the respondents is that the defendants 12 and 13 are likely to transfer the buses as the third defendant had already transferred the buses in favour of the defendants 12 and 13.
16. The application for appointment of Receiver has been made two years after the transfer in favour of respondents 12 and 13. Hence, if the lower court felt that there is imminent danger of transfer of the buses by the defendants 12 and 13, the lower court could have granted interim injunction as prayed for in paragraph 6 of the plaint restraining defendants 12 and 13 from alienating the buses instead of appointing an ex parte interim receiver since it is always open to the lower court to grant lesser relief when larger relief is asked for.
17. The lower court has not given any reason as to how the plaintiffs will be aggrieved within the short spell of time during which the respondents might have been served with the notice. The court has to give its reasons for appointment of an ex parte interim receiver that the relief is so imminent without which the rights of the plaintiffs are at peril. In the absence of any such reason, I am of the opinion that the lower court had exceeded its bounds in passing an ex parte order of appointing the receiver.
18. The learned Counsel for the respondents, referred to a judgment reported in Mohd. Yunus v. Mohd Mustaqim and contended that when the alternative remedy is available, this Court cannot exercise its jurisdiction under Article 227 of the Constitution of India, as the power of this Court is not to correct an error apparent on the face of the record, much less an error of law and in exercising supervisory power under Article 227 of the Constitution of India, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which determination of the inferior Court or Tribunal purports to be based or to correct the errors of law in the decision. The above said judgment has no application so far as the facts of the present case is concerned. The order of the lower court is not based on any evidence and hence the question of reviewing or re-weighing the same may not arise. Only on the basis of the averments made in the affidavit, the lower court had passed the order of appointing the interim receiver, Hence it is open to this Court under Article 227 of the Constitution of India to consider whether the Court has acted within its bounds in ordering the appointment of ex parte interim receiver i.e., whether the lower court had in its mind the well-laid principles enunciated by the Apex Court and this Court as to the circumstances under which the ex parte interim receiver can be appointed. There is nothing error apparent on the face of the record or the error of law arises but only the exercise of the jurisdiction of the court under the given circumstances is involved.
19. So far as the alternative remedy is concerned, it is true that 0.43, Rule 1 provides an appeal against the order passed by the lower court. Under Order 40, Rule 1 it has to be seen whether that alternative remedy is an efficacious one, available to the parties forthwith i.e., immediately after passing of the ex parte order of appointing the receiver. In the case on hand, the petitioners have to wait to prefer an appeal till the certified copy of the fair and decretal order are made ready. It will take considerable time. In the normal course, the order of appointment of ex parte interim receiver will be given effect to. As stated already, the receiver had taken possession of the bus. If the order of appointment of ex parte interim receiver is given effect to, then there is no purpose in filing the appeal since pending the appeal, the petitioner may not be entitled to an order of stay as the order of the trial court had already been given effect to. The petitioner has to wait till the appeal is disposed of. Once injustice has beer done to a party, to rectify the same, he can approach this Court in order to seek immediate relief.
20. In the absence of any material to show that the application for appointment of receiver cannot withstand the delay of hardly a week or 10 days, during which period the respondents could have been served with notice and the application can be disposed of after hearing them, in my opinion, the lower court had exceeded in its jurisdiction in appointing the ex parte interim receiver.
21. For the reasons stated above, the civil revision petition is allowed. The order of the lower court in I.A. No. 202 of 1996 dated 23.2.1996 appointing an ex parte interim receiver is set aside.
22. Now that some of the respondents had filed counter, the petitioner is also directed to file counter in I.A. No. 202 of 1996 within two weeks from today and the lower court can dispose of the application, after hearing all the parties concerned. I made it clear that the lower court, while disposing of the I.A. No. 202 of 1996, need got carried away with the observations which I made earlier with regard to the appointment of receiver.