IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.226 of 2005
AJAY KUMAR YADAV & ORS
Versus
ASHOK KUMAR YADAV & ORS
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ORDER
15. 24.09.2010. Heard the learned counsels for the parties on the
Interlocutory Application No.4476 of 2005 filed on behalf of
the appellant under Order 39 Rule 1 & 2 praying therein to
restrain the respondents from selling the suit properties.
(2) The learned counsel appearing on behalf of the
appellant submitted that the respondents are trying to sell the
suit property and negotiating with outsiders. On the other
hand, the learned counsel for the respondent submitted that
there is no question of selling the suit property and the
statements made by the appellant is entirely false. At the
time of hearing of the injunction application, the learned
counsel appearing on behalf of the respondent No.4 submitted
that he is not intending to sell any property, however, the
learned counsel submitted that the plaintiff suit for partition
has been dismissed by the Court below on the ground that
there had already been partition between the parties, and,
therefore, no prima facie case is made out and injunction
cannot be granted.
(3) From perusal of the sale deeds annexed by the
respondents in the counter affidavit to the injunction
application, it appears that in those sale deeds the plaintiff
has clearly mentioned that there had been amicable partition
2
between the parties and the property is in exclusive
possession of the appellant and, therefore, he sold the
properties.
(4) From perusal of the impugned Judgment also, it
appears that the sale deeds executed by the plaintiff-
appellant were filed by the defendants which were marked
Exhibit. It further appears that these sale deeds were
executed during the pendency of the suit itself. The learned
Court below considered these statements made by the
appellant in these sale deeds to the effect that there has been
partition between the parties and he is in exclusive possession
of the property and then he sold the property by various sale
deeds. Therefore, prima facie, it appears that the appellant
has admitted previous partition and the learned court below
has dismissed the suit for partition on that ground. If further
appears that during this long period, there is no instances of
selling of any property by the respondent whereas appellant
has sold many properties during the pendency of the suit.
Further, the respondents denied the allegation of selling.
(5) I, therefore, find that the plaintiff-appellant has
got no prima facie case and balance of connivance is also not
in his favour. In view of the above facts and circumstances of
the case, there is no question of any loss to the appellant
arises.
(6) I, therefore, find no merit in this Injunction
application and accordingly, this injunction application, i.e.
3
I.A. No. 4476 of 2005 is rejected.
(7) Heard the learned counsels for the parties on
I.A. No.3900 of 2006 filed by the appellant under Order 40
Rule 1 C.P.C. for appointment of Receivers.
(8) From perusal of the application, it appears that
prayer for appointment of receiver has been made on the
ground that respondents are enjoying the suit properties to
the exclusion of the appellant and they are not paying a single
farthing to the appellant.
(9) It is well-settled principal of law that the object
of appointing a receiver is to protect and preserve and
manage property during pendecy of a suit and it is recognized
as one of the harshest remedies. For appointment of
receiver, the appellant has to prove strong prima facie case.
The learned counsel for the appellant submitted that if
receiver is appointed, no harm will be caused to the
respondent. In my opinion, the mere circumstances that the
appointment of a receiver will do no harm to anyone is not a
ground for appointing receiver. In this case as discussed
above while deciding the injunction application, it was found
that the plaintiff has got no prima facie case and, therefore, in
my opinion, this finding will apply in this Interlocutory
Application for appointment of receiver also. There is no
averment regarding wastage or damage caused by the
respondents to the properties.
(10) As has been stated above, the plaintiff suit has
4
been dismissed finding that there had already been previous
partition. That finding is based on the admission of the
appellant made in the registered sale deeds executed by him
during the pendency of the suit. Therefore, prima facie case
is against the appellant. Accordingly, I find that this is not a
fit case for appointment of receiver.
(11) In the result, the receiver application, i.e., I.A.
No.3900 of 2006 is hereby rejected.
(12) Heard the parties on I.A. No.5500 of 2006.
(13) This application has been filed under Section
151 C.P.C. by the appellant praying therein to allow the
appellant to put a sine board on the properties mentioning
therein that the properties are the subject matter of First
Appeal pending before this Court.
(14) From perusal of the application, it appears that
the same set of statements have been made which have been
made in the injunction application and receiver application. In
my opinion, the relief prayed for by the appellant is not
warranted in this case in view of the above findings. In the
interest of justice, no such relief could be given to the
appellant. Accordingly, this application, i.e., I.A. No. 5500 of
2006 is also rejected.
( Mungeshwar Sahoo, J.)
Sanjeev/