ORDER
R. Banumathi, J.
1. This revision is preferred against the Fair and Decretal Order made in I.A. No. 540/2001 in I.A. No. 283/2001 in O.S. No. 34/2000 dated 2.11.2001 by the Subordinate Judge, Maduranthakam, dismissing the petition filed under Order 9, Rule 7 CPC declining to set aside the exparte order to appointment of Receiver passed in I.A. No. 283/2001.
2. The Plaintiffs/Defendants 1 and 2 – sons of D-3 – Raja Ram Reddiar, claim that the suit properties ‘A to E’ schedule properties are the ancestral properties. The Plaintiff has filed the suit O.S. No. 34/2000 for partition and allotment of 1/4th share. The suit property relates to a number of items of immovable properties comprised in A to E Plaint Schedule Properties.
3. Defendants 1 to 3 have filed Written Statement. D-1 has filed the Written Statement contending that the Preliminary Decree for partition could be passed in respect of the suit properties excepting ‘B’ Schedule Property, which is to be allotted as three equal shares and ‘C’ schedule in four equal shares and that D-1 is entitled to 1/3rd share in ‘B’ Schedule and 1/4th share in ‘C’ Schedule. D-2 has filed Written Statement stating that the suit may be decreed as prayed for and that the second Defendant may be allowed 1/4th share. D-3 has filed Written Statement contending that the suit item numbers 27 to 30 viz., dry S. No. 311/6, 311/7, 311/8 and 311/13 are the absolute and self acquired properties of D-3. D-3 has purchased those items under Sale Deeds dated 30.10.1977 and 25.5.1983. Since the date of purchase, D-3 is in exclusive possession and enjoyment of those items and he has also made improvements. Hence the Plaintiff is not entitled to suit items 27 to 30. D-3 is entitled to 1/4th share regarding the other items of properties.
4. I.A. No. 230 of 2000:-
As per order in this application, Receiver was appointed to manage the plaint schedule property ‘A’ and ‘B’.
5. I.A. No. 283 of 2001:-
This application was filed to appoint an Advocate Commissioner to take charge of ‘D’ Schedule property. ‘D’ Schedule Property relates to Door No. 28, South Bagh Road, T. Nagar Madras-17.
6. Application was taken up on 19.4.2001 and notice to counsel for R-1 and R-2 was ordered. Application was posted on 24.4.01. For filing counter, the case was adjourned to 26.4.01. Since there was no representation for R-1 and R-2, the application for appointment of Receiver for ‘D’ Schedule Property was allowed by order of the Court dated 26.4.2001.
7. I.A. No. 540 of 2001 in I.A. No. 283 of 2001 filed on 10.8.2001:-
This application was filed under Order 9 Rule 7 CPC to set aside the exparte order dated 26.4.2001, passed against the Petitioner/D-2 in appointing the Advocate Commissioner for ‘D’ Schedule property. According to the Revision Petitioner, on 26.4.2001, his father-in-law fell ill and that he has to take his father-in-law to hospital for treatment and that he was unable to appear in the Court on that day and also instruct his counsel to appear and file the counter Statement. Expressing hardship, the second Defendant/Revision Petitioner sought to set aside the exparte order passed in I.A. No. 283 of 2001.
8. The Application was resisted by the first Defendant on the grounds that the application has been belatedly filed and that the Petitioner ought to have filed an application for condoning the delay and that the petition is not maintainable. It has been further said that the Advocate Receiver appointed, has already taken possession of the ‘D’ schedule property and leased the same, against which the Petitioner could have no objection. The Petitioner/D-2 had removed pipes and motor and acted against the interest of other co-owners and committed acts of waste.
9. Upon consideration of the contentions of both parties, the learned Subordinate Judge dismissed the application inter-alia on the following grounds :-
(i)the Petitioner has not made out sufficient cause for his non-appearance on 26.4.2004 and that no evidence is produced showing that his father-in-law was ill on 26.4.2004;
(ii) the petition has been filed beyond thirty days and that no petition to condone the delay has been filed;
(iii)in the Written Statement filed in I.A. No. 238/2000, the Petitioner/D-2 has filed the counter Statement stating that if at all any Receiver is to be appointed, then the Receiver has to be appointed for ‘D’ Schedule property also.
10. Aggrieved over the same, the Revision Petitioner/D-2 has preferred this revision. The Respondents have remained exparte. Since the question regarding Section 5 of the Limitation Act is involved, earlier this Court has appointed one Mr.Rajendra Kumar as Amicus Curiae to assist the Court.
11. Assailing the impugned order, the learned counsel for the revision Petitioner has submitted that the finding of the trial Court that the petition ought to have been filed with an application to condone the delay is erroneous. It is contended that Article 123 of the Limitation Act is not applicable to set aside the exparte order and the application to set aside the exparte order shall be governed only by the Residuary Clause in Article 137 of the Limitation Act. It is further submitted that when Order 9 Rule 7 petition is not governed by Article 127, the trial Court erred in finding that the application has not been filed within thirty days. Pointing out that the appointment of Receiver for a property in South Bagh Road, T.Nagar, which is of commercial importance has serious implications, the learned counsel has submitted that the trial Court has not taken into consideration the importance of the location and that casual manner of appointing the Advocate Receiver cannot be sustained. It is further submitted that the averments made in the counter statement in I.A. No. 238 of 2000 is purely argumentative in nature and that the lower Court erred in allowing the same and appointing an Advocate Receiver.
12. Upon consideration of the submissions, the only point involved in this revision is whether the learned Subordinate Judge was right in allowing the application and in appointing the Advocate Receiver for ‘D’ Schedule Property, referring to the averments in the counter Statement in I.A. No. 238/2000 and whether the finding of the trial Court that the application has been filed beyond thirty days is sustainable ?
13. Earlier in I.A. No. 238/2000, Advocate Receiver was appointed relating to ‘A’ and ‘B’ Schedule properties. Later I.A. No. 283/2001 was filed to appoint Advocate Commissioner to ‘D’ schedule property which relates to Door No. 28, South Bagh Road, T.Nagar. The order of appointment of Advocate Receiver in I.A. No. 238/2001 cannot be said to be consequential, since in I.A. No. 283/2001, the order directs the Advocate Commissioner to do certain acts viz., to take charge of ‘D’ Schedule Property and to manage the same by leasing the same to third party and to deposit the rent.
14. The appointment of Receiver is purely discretionary. It should be exercised in exceptional cases. The discretion is not to be exercised in an unregulated manner, but with great caution and after considering all the entire circumstances of the case. The Receiver is not merely to be appointed simply because it would be convenient or would result in no harm to the Respondents. Unless case has been made out that the property in question would be dissipated, the Advocate Receiver cannot be appointed. As rightly submitted by the learned counsel for the revision Petitioner, appointment of Receiver for a property in a commercial location like T.Nagar has serious implications. Taking charge of the premises and leasing out to tenants would certainly affect the status quo and the rights of parties. In view of the same, sufficient opportunity ought to have been afforded to the Respondents to file their counter statement. From the records it is seen that the application was filed on 19.4.2001. For filing of the counter, the case was adjourned to 24.4.2001. Only two days time was given to the Respondents 1 and 2 for filing the counter. On 26.4.2001, the petition was allowed on the only ground that there was no representation for the Respondents 1 and 2 and that their counter statement has not been filed. No sufficient opportunity has been afforded to the Defendants to file their counter statement nor was the Court satisfied that there are substantial grounds for appointment of Advocate Receiver.
15. For allowing the petition and to appoint Receiver, the learned Subordinate Judge has referred to the earlier averments in the counter statement filed in I.A. No. 238/2000 in which the revision Petitioner has averred:-
“It is significant to mention here that Petitioner/1st Defendant has deliberately omitted to include schedule ‘B’ of the suit property. If at all any receiver to be appointed, then he has to be appointed for that ‘D’ schedule property also.”
The above averments that ‘if at all any receiver to be appointed, then he has to be appointed for that ‘D’ schedule property also’ is purely argumentative. The above averments cannot amount to admission, holding the revision Petitioner/D-2 responsible for such statements. The lower Court was not right in placing reliance upon the above averments in allowing the petition in appointing Advocate Commissioner.
16. I.A. No. 283/2001 was ordered exparte on 26.4.2001. The application to set aside that exparte order was filed on 10.8.2001, only after four months. Yet another reason for dismissing the petition was that the petition was filed on 10.8.2001 beyond thirty days of the order in I.A. No. 283/ 2001. It was also found that the application to set aside the exparte order ought to have been filed within thirty days from the date of order and the application filed beyond thirty days is not maintainable.
17. Learned counsel Mr.Rajendra Kumar, Amicus Curiae has made his submissions contending that the petition under Order 9 Rule 7 would be covered not under Article 123 but would be governed by the residuary clause contained under Article 137 of the Limitation Act. In support of his contention, the learned counsel has drawn the attention of the Court to the decision in AIR 1988 Calcutta 358.
18. The point for consideration is whether the limitation for making application under Order 9 Rule 7 CPC is governed by Article 123 of the Limitation Act or by the Residuary Clause contained in Article 137 of the Limitation Act. Article 123 applies to an application by a Defendant to set aside a Decree passed exparte. Thirty days period of limitation is prescribed for such application; commencing from the date of decree or where the summons or notice was not duly served; when the applicant had knowledge of the Decree. Thus Article 123 speaks of a Decree passed exparte and not an exparte order. It is relevant to note that in some other Articles, reference has been made to both Decrees and Orders. Thus the legislature has maintained the difference between “Decree and Order”. Article 123 shall apply only to exparte decrees or exparte orders having the force of Decree or Order which finally determines the right of the parties.
19. Thus an order passed in a suit, finally determining the rights of the parties shall be a decree, while final order passed on an application shall simply be an order and not a Decree. Thus the word ‘Decree’ must be given the meaning assigned to it in the Civil Procedure Code. To put it differently, the prescribed period of limitation for an application under Order 9, Rule 13 CPC, for setting aside an exparte Decree is thirty days, but not for an application to set aside an exparte order, with the result that an application for setting aside the exparte order shall be governed by the residuary clause contained in Article 137 of the Limitation Act.
20. The learned counsel appointed to assist the Court has drawn the attention of the Court to the decision reported in AIR 1988 Calcutta 358. This Court’s finding that petition filed under Order 9 Rule 9 would be governed by Article 137 of the Limitation Act is fortified by the decision of the Full Court of the Calcutta High Court which reads :-
“As regards the limitation for filing the aforesaid application for restoration there is no specific provision in the Limitation Act 1963 and therefore such application for restoration would be governed by Article 137 of the Act and be filed within a period of three years as prescribed therein. Although the period of limitation for making an application for restoration of a suit dismissed for default under Order 9 is thirty days from the date of the order of dismissal, the application for restoration of miscellaneous case arising out of such application under Order 9, when such Misc. Case is dismissed for default, is not governed by the provisions of Article 122 of the Limitation Act in view of the fact that expressly in terms of the said Article 122, the miscellaneous case arising out of an application under Order 9 is not attracted.”
21. When Article 123 applies only to exparte decree, the learned Subordinate Judge was not right in finding that the application filed under Order 9 Rule 7 CPC beyond thirty days is not maintainable. Hence the impugned order cannot be sustained.
22. This Court places on record the valuable assistance of Mr.Rajendra Kumar in assisting the Court, as to the applicability of Article 123 of the Limitation Act or the Residuary Clause regarding the petitions filed under Order 9 Rule 1 CPC.
23. For the foregoing reasons, the revision is allowed and the order and decree made in I.A. No. 540/2001 in I.A. No. 283/2001 in O.S. No. 34/2000 dated 2.11.2001 made by the Subordinate Judge, Maduranthakam are set aside. The Subordinate Judge, Maduranthakam, (now said to have been transferred to the District Court, Chengalpattu) is directed to give opportunity to the second Defendant to file counter statement in I.A. No. 238/2001 and after affording sufficient opportunity dispose of the same in accordance with law. There is no order as to costs. Consequently, CMP No. 4566 of 2003 is closed.