Rushi Behera and Others vs Mst. Pancha Behera and Others

B.K. Ray, J.—Opp. party No. 1 as Plaintiff instituted the suit out of which the present revision arises for partition of her 1/3rd share in the suit properties against the present Petitioners and opp. party Nos. 3 to 5 as Defendants. In the said suit the trial Court appointed opp. party No. 1 as receiver in respect of her 1/3rd share in the suit properties. Similarly, the other Defendant opp. parties were appointed as receivers in respect of some other portions of the suit properties. In respect of the remaining portion of the suit properties a public officer was appointed receiver and he was directed to render accounts to the trial Court. There was no order directing the party receivers for submission of accounts. During the pendency of the suit opposite party No. 1 transferred her 1/3rd share in the suit properties while acting as receiver in favour of opp. party No. 2. Opp. party No. 2 thereafter filed an application to get herself impleaded as a co-Plaintiff in the suit and filed another application praying that she might be permitted to act as receiver in respect of 1/3rd share of the suit properties purchased by her in place of opp. party No. 1, the previous receiver. These prayers were allowed by a composite order by the trial Court. Against this order the present Petitioners preferred a miscellaneous appeal in the Court below. The same having been dismissed the Petitioners have come up to this Court in the present revision.

Mr. H.B. Swain, learned Counsel for the Petitioners, urges that opp. party No. 1 having been appointed as receiver by the trial Court in respect of her 1/3rd share in the suit properties, the said property must be held to be in custody of the Court for the benefit of the successful party in the litigation. Therefore, she had no power to transfer the property in favour of opp. party No. 2 without the permission of the Court. The trial Court, therefore, was not right in impleading opp. party No. 2 as a co-Plaintiff in the suit and in appointing her as receiver. The transfer in favour of opp. party No. 2 must therefore be held to be invalid and the only course left open to the trial Court was to set aside the transfer. For this position, reliance is placed upon a decision reported in Hadu Goudo and Others Vs. Dayanidhi Sahu and Others, . It is true that when a property is entrusted to a receiver the latter remains in possession of it so entrusted as an officer of the Court and he has no power to transfer the same without the permission of the Court in that capacity and it is open to the Court to set aside the transfer by him. It is also equally true that a party to a suit is fully competent to transfer its interest in the suit property during the pendency of the suit. Such transfer is subject to the final result in the litigation. This means that if the party transferring the property gets its title established in the suit, the transferee from it gets title in respect of the property transferred in its favour on the strength of the transfer. Such a transfer does not amount to transfer of a right to sue which is prohibited u/s 6(a) of the Transfer of Property Act. A reference may be made in this connection to a decision reported in Uchhab Patra Vs. Brundaban Mallik, . The facts of that case may briefly be stated thus: One ''P'' owned a plot of land upon which ''M'' trespassed and forcibly possessed a part of it. ''P'' filed a suit for recovery of damages of Rs. 219/ - against ''M''. During the pendency of the suit ''P'' transferred the land along with the claim for damages to ''U'' by a registered sale deed. The transferee ''U'' did not got himself substituted in the place of ''P'' in the suit under Order 22 Rule 10, CPC Code. The suit was decreed and the transferee ''U'' levied execution of the decree. The judgment-debtor ''M'' filed an objection u/s 47, CPC saying that the subject-matter of the suit was not transferable u/s 6(a) of the Act and that the transferee ''U'' could not continue the proceeding after the decree was passed. It was held in that case that the expression ''a mere right to sue'' means a right to sue unconnected with the ownership of any property. Mere right to sue is not property but is merely a title to get future property. V/here the right to recover damages in respect of a property is transferred with the property itself, the transfer does not consist of a mere right to sue. The transfer of a right to sue for damages is in such a case incidental to the property itself, it is intimately connected with the enjoyment of the property. That decision, therefore, is a clear authority for the view that during the pendency of a suit a party to it can transfer its interest in the property which is the subject-matter of the litigation to another. In the case before me the transfer made by opp. party No. 1 in favour of opp. party No. 2 was not in the capacity of a receiver. Opp. party No. 1 asserting herself as the owner of 1/3rd of the suit properties transferred the same in favour of opp. party No. 2. Such a transfer is not a transfer by a receiver as prohibited in the decision reported in Balaram Tripathy and Ors. v. Hemalata Dibya and Ors. AIR 1969 Orissa 196. Law is also well settled that a transferee from a party to a suit gets interest in the suit property and has as a right to be substituted in the place of the transferor in the suit itself under the provisions of Order 22 Rule 10, CPC Code. Order 22 rule, 10, CPC enables the transferee to continue the proceeding with the leave of the Court. It does not bar the transferor continuing the suit for the benefit of his successor. Order 22 Rule 10, CPC is an alternative procedure which guards against the dangers that the original Plaintiff being no longer interested in the proceedings may not vigorously prosecute them or may even collude with the adversary see Uchhab v. Brundaban AIR 1969 Orissa 142. So, there was nothing wrong when opp. party No. 2 got herself impleaded as a co-Plaintiff along with opp. party No. 1 after getting a transfer in her favour. Where a party to a suit has been injuncted not to alienate the suit property and in spite of the order of injunction it transfers the suit property the sale is not a nullity see Balaram Tripathy and Others Vs. Hemalata Dibya and Others, . On the aforesaid analysis therefore the only inference possible in the present case is that the sale by opp. party No. 1 in favour of opp. party No. 2 is not a nullity. The decision relied upon by Mr. Swain referred to above has no application to the facts of the present case. It is admitted that prior to the transfer opp. party No. 1 was appointed as receiver by the trial Court. This could only be done because the Court found it just and convenient. Therefore, when opp. party No. 2 after the transfer in her favour got herself impleaded as a co-Plaintiff and prayed for being appointed as receiver it was no longer necessary for the trial Court to come to a fresh decision as to whether the appointment of a receiver in respect of 1/3rd share of the suit properties will be just and convenient. In my view, therefore, the trial Court was justified in allowing opp. party No. 2 to continue as a receiver in place of opp. party No. 1. The lower appellate Court by dismissing the appeal preferred by the present Petitioners has only confirmed the order of the trial Court impleading opp. party No. 2 as a co-Plaintiff and appointing her as receiver in place of opp. party No. 1. True, in the body of the judgment the Court below has observed that the order appointing opp. party No. 2 as, receiver is not appealable. Relying on this observation it is very strongly urged by Mr. Swain, learned Counsel for the Petitioners that the Court below is wrong in making such an observation. It should have gone into the merit of the case and disposed of the appeal before it and should not have dismissed the appeal by saying that the appeal was not maintainable. The order of the trial Court appointing opp. party No. 2 as receiver is certainly an order under Order 40 Rule 1, CPC and hence it is appealable. Therefore, there can be no doubt that the observation of the Court below that the appeal before it was not maintainable is erroneous. But in view of the discussions of the law which I have made above, since I do not find any justification to interfere with the order of the trial Court impleading opp. party No. 2 as a co-Plaintiff and appointing her as receiver in place of opp. party No. 1, merely because the Court below has dismissed the appeal against the order of the trial Court with an observation that the appeal is not maintainable, it will not be proper to interfere with the appellate order and to remand the case as I find that proper justice has been done by impleading opp. party No. 2 as a co-Plaintiff and appointing her as receiver ''in place of opp. party No. 1.

In the result, therefore, I do not find any merit in this revision which is accordingly dismissed with costs. Hearing fee is assessed at Rs. 50/ - (fifty),