Haji A.M. Hidayathullah vs Hasbullah Idrooze and Others

M. Chockalingam, J.—This intra-court appeal challenges an order of the learned single Judge of this Court appointing an Advocate

Receiver for collection of rent from the tenants occupying the suit property.

The Court heard the learned Counsel for the appellant and looked into the materials available including the order under challenge.

It was a suit for partition filed by the respondents seeking division of the suit property. Pending the suit, originally an application was filed in

Application No. 1134 of 2005 seeking appointment of the second plaintiff as the party receiver to collect the rents. There was a direction given to

the first defendant to deposit a sum of Rs. 10,000/- every month to the credit of the suit from the rental income and the parties are at liberty to

approach the Court if there was any need. The said order made by the learned single Judge was challenged in O.S.A. No. 235 of 2006, wherein,

after enquiry, an order came to be passed issuing a direction to the first defendant to make payment of the arrears calculated at Rs. 10,000/- per

month from January, 2006. The said arrears were to be deposited to the credit of C.S. No. 735/2005 within a period of eight weeks therefrom

and the remaining arrears to be invested in the fixed deposit, to be renewed periodically in the recurring deposit and the same was to be invested in

the fixed deposit once in a year. After passing of the order, the first defendant did not comply the same. Under such circumstances, the instant

application came to be filed seeking appointed of an Advocate Receiver. The learned single Judge, after giving opportunity to the respondents in

that application, namely defendants made an order which runs as follows:

But , however, in the light of the above facts, it is just and convenient that an Advocate Receiver is to be appointed for collecting rents from the

suit property in old Door Nos. 177, 135, New Door No. 180 measuring 2538 sq.ft. situated in Anna Pillai Street, George Town, Chennai and to

deposit the rents in a separate account and pay to the applicants a sum of Rs. 10,000/- per month from out of the rental income and deposit the

balance into a separate bank account after adjusting the expenditures incurred in doing so. He shall maintain proper accounts and submit to this

Court once in six months.

The tenants in the suit property are hereby directed to entrust the rents to the Advocate Commissioner with effect from 01.09.2009 onwards.

The first respondent is also directed to part with the rental records to the custody of the Advocate Receiver.

Mr. Balan Haridoss, Advocate, No. J-51, Anna Nagar, Chennai - 600040 is hereby appointed as an Advocate Receiver for the above stated

purpose. His remuneration is fixed at Rs. 3000/- (Rupees three thousand only) and he is entitled to get refund of the expenses involved in managing

the property.

Accordingly, O.A. No. 634 of 2009 is allowed. O.A. No. 570 of 2009 stands dismissed. No costs.

Aggrieved over the same, this appeal has been brought forth.

After hearing the learned Counsel for the appellant, the Court is of the considered opinion that the order of the learned single Judge could not be

disturbed since nothing remains factually or legally in favour of the appellant herein.

It was a suit for partition. The defendant has all along been in possession and collecting the rents. Originally, the plaintiff filed an application for

appointment of party receiver. The learned single Judge was not inclined to appoint a party receiver but permitted the defendant to make collection

of rental and issued certain directions. Not satisfied with the same, the plaintiffs took it on appeal. Even in the said appeal, the order of the learned

single Judge, allowing the first defendant to continue the collection of rents was not disturbed but there was a direction to deposit the rental arrears

with certain other directions also. Admittedly, these directions were not complied with by the first defendant. Under such circumstances, the instant

application has arisen.

Needless to say, in a given case like this, when a party is appointed as a Receiver in respect of a property covered under the suit for partition,

duty is cast upon him to make proper collection, maintain the accounts and also proper maintenance of the property. The Apex Court had an

occasion to consider such a situation and had given its judgment in Anthony C. Leo Vs. Nandlal Bal Krishnan and others, and also in Kasturi Bai

and Others Vs. Anguri Chaudhary, which are actually incorporated by the learned single Judge in his order. It is a case where there was non-

compliance of the earlier orders of this Court which led to the necessity of appointment of an Advocate Receiver and there were warranting

circumstances to do so. Therefore, the appellant, who was allowed to continue to collect the rents, has not complied with the order of this Court,

and hence, he cannot have his own grievance to ventilate the same.

However, the learned Counsel for the appellant brought to the notice of the Court that the appellant is 74 years old and he could not eke his

livelihood at this age and there is no other income also and requested that a direction may to be issued to the Advocate Receiver to give the

remaining rental amount which is nearly about Rs. 17,000/- to the appellant every month.

Heard, the learned Counsel for the respondent who submits that giving a sum of Rs. 17,000/- to the appellant, is on the higher side and a

reasonable amount may be ordered to be given to the appellant.

Taking into consideration the facts and circumstances, this Court feels it fit and proper to issue a direction to the Advocate Receiver to pay a

sum of Rs. 12,000/- every month, out of Rs. 17,000/-, directly to the appellant and the balance amount shall be deposited before the Court to the

credit of the suit.

Accordingly, the appeal is disposed of. No costs.