caselaws
Supreme Court of India
M/S Sherali Khan Mohamed Manekia vs State Of Maharashtra & Ors on 27 February, 2015Author: M Eqbal
Bench: M.Y. Eqbal, Kurian Joseph
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2475-2476 OF 2015
(Arising out of SLP (Civil) Nos.22705-22706 of 2013)
M/s. Sherali Khan Mohamed Manekia …Appellant(s)
versus
The State of Maharashtra
and others …Respondent(s)
JUDGMENT
M.Y. Eqbal, J.:
Leave granted.
2. In the instant appeals by special leave the appellant assailed the
order dated 14th January, 2013 passed by the learned Single Judge of the
Bombay High Court in Court Receiver’s Report No.25 of 2007 and Additional
Report No. 383 of 2012, whereby the High Court while disposing of the
Report of the Court Receiver held that after the disposal of First Appeal
No. 767 of 1998 and dismissal of the special leave petition, the Receiver
deemed to have been discharged.
3. It appears that the suit property was declared as evacuee property
and the same was purchased by the appellant in an auction sale as far back
as on 15.6.1964. In the year 1980, the appellant filed a suit being Civil
Suit No. 37 of 1980 before the District Judge, Thane Court seeking specific
performance of the sale of the property and possession and interim relief
of injunction restraining the defendants therein from carrying on further
construction on the suit property. The appellant further made a prayer for
appointment of Receiver.
4. The trial court rejected the prayer for appointment of Receiver by
order dated 3.5.1980 and against that, appellant moved the High Court in
First Appeal, which was finally heard and order dated 22.7.1980 was passed
appointing the Court Receiver. The High Court while making appointment of
the Receiver directed to take possession of the suit property. All the
persons who were in actual possession of any part of the suit property were
continued to remain in possession. The Receiver was directed to collect
rent and compensation as the case may be from all the persons in actual
possession after verifying from them their present right to remain in
possession. The High Court further directed that the Receiver should take
suitable direction from the court if he was presented with any
particular difficulty.
5. Indisputably, the suit was finally disposed of on 4.2.1998. While
disposing the suit, the trial court gave liberty to the plaintiff-appellant
to move the High Court for directions for taking possession of the suit
property from the Court Receiver so appointed by the High Court.
6. As against the judgment and decree of the trial court, First Appeal
was filed being F.A. No.767 of 1988, which was finally heard and dismissed
by the High Court vide judgment dated 22.12.2004. The special leave
petition filed against the judgment of the High Court was also dismissed on
19.2.2007.
7. It further reveals from the record that the Court Receiver so
appointed submitted Report No.25/2007 before the High Court seeking
directions with regard to the encroachment on the suit property and handing
over possession to the appellant. The Court Receiver also submitted
Additional Report No.383 of 2012. The High Court after taking into
consideration these Court Receiver’s reports, passed the impugned order
holding that the receiver shall be deemed to have been discharged after the
dismissal of the first appeal by the High Court, followed by dismissal of
the Special Leave Petition by the Supreme Court.
8. Assailing the impugned order, Mr. Shyam Divan, learned senior counsel
appearing for the appellant, submitted that even after the disposal of the
appeal, affirming the judgment and decree of the trial court, the Court
Receiver continues in his office till he is discharged and fulfills all the
incidental obligations that are cast upon him by virtue of his appointment
and till he renders account to the Commissioner of Accounts.
9. The short question, therefore, that falls for consideration is as to
whether after the disposal of the appeal, the Court Receiver stands
discharged or whether he continues in his office till an order of discharge
is passed by the Court?
10. The High Court in the impugned order observed:
“The directions cannot be issued only on assumption that this Court
was monitoring the matter for all these years irrespective of disposal of
the Appeal from Order. That may be the understanding of parties, but
before me nothing has been placed which would enable me to hold that from
1983 till this report was filed in the year 2007, this Court had issued any
directions or had passed any orders indicative of control over the Court
Receiver. In fact the Court Receiver’s reports and paragraphs of which
have been reproduced by me hereinabove, would indicate that it is only the
correspondence and meetings of parties with the Court Receiver or his
representative that have been referred to. The Court Receiver seems to b e
now for the first time informing the Court of such meetings and contents of
letters. He has not sought any direction for all these decades and because
the parties were engaging and involving him in correspondence, does not
mean that the Court has in any way continued him. If it is the
understanding of parties that the Court Receiver continues, then, that
cannot be proved only by his correspondence. The Court Receiver, High
Court of Bombay, on account of his own limitation and lack of understanding
may be under an impression that he continues as a Receiver of the immovable
property despite disposal of the Appeal from Order, main suit, First Appeal
and thereafter, the proceedings before the Honourable Supreme Court. If
that is the understanding which he has given to parties or parties have
given to him and he entertains correspondence and holds meetings, by itself
and without anything more cannot assist the Plaintiffs/Decree Holders. The
Court cannot issue any directions on such reports and filed belatedly. In
fact the Plaintiffs/Decree Holders understood that they have to proceed to
execute and enforce the Decree for possession in their favour by adopting
appropriate proceedings. Even then they have continued the correspondence
and persuaded the Court Receiver to file reports before this Court, does
not mean that the Court is obliged to take cognizance of the same.
To my mind these are thoroughly misconceived proceedings and the remedy of
the Plaintiffs/Decree Holders lies elsewhere. They cannot insist on the
Court passing orders only because of continued correspondence and meetings
with the Court Receiver. The Court has not authorized him nor has he
sought permission of the Court authorising him in any manner to continue in
possession of the suit property. If parties and equally the Court Receiver
do not deem it fit to approach this Court for all these years and seek its
intervention or interference, then, all the more they cannot in the
exercise that is now carried out, insist on directions to be given to the
Court Receiver. Equally, the Court Receiver cannot pray for any direction.
If the Court Receiver continues to be in possession and wants to handover
possession to the parties claiming under the Decree, then he is at liberty
to move the Executing Court. If the plaintiffs/Decree Holders desire any
directions being given to the Court Receiver, then it is for them to seek
appropriate reliefs and directions in the pending execution proceedings.
It is open to the Court Receiver or parties to do so. This Court after the
disposal of the Appeal from Order has nothing before it which could be said
to be pending. The First Appeal is disposed of long time back. The
Reports are filed in proceedings which are no longer pending, but are
disposed of finally. Neither the parties nor the Court Receiver sought any
further directions from the Court.”
11. In paragraph 49 of the order the High Court noted the following:-
“Therefore, the record of that case was perused by the learned judge in its
entirety and he found that the order was passed discharging the Court
receiver on 26.11.1992 and at the same time continuing him for certain
period to enable parties to file the Appeal from the said order. The
Appeals were filed, but same were dismissed by a Division Bench and the
Special Leave Petition which was filed before the Supreme Court also came
to be dismissed on 27.07.1993. The issue was whether the Court Receiver
became functus officio right from the date when the order was passed on
26.11.1992 discharging the Court receiver or whether the Court Receiver
continued to be in charge of the property on account of pendency of his
reports before the Court and for the other reasons pointed out by the
counsel for the Plaintiffs and Defendant No.2 therein.”
12. Normally, when a Receiver is appointed on an interlocutory
application without any limit of time, it is necessary to provide for the
continuance of his appointment in the final judgment. In Halsbury Laws of
England, 3rd Edn., Vol. 32 (Lord Simond) at page 386 says :-
“When a receiver is appointed for a limited time, as in the case of interim
orders, his office determines on the expiration of that time without any
further order of the court, and if the appointment is ‘until judgment or
further order’ it is brought to an end by the judgment in the action. The
judgment may provide for the continuance of the receiver, but this is
regarded as a new appointment. If a further order of the court, though
silent as to the receivership, is inconsistent with a continuance of the
receiver, it may operate as a discharge.”
When a receiver has been appointed on an interlocutory application
without any limit of time, it is not necessary to provide for the
continuance of his appointment in the final judgment. The silence of the
judgment does not operate as a discharge of the receiver or determination
of his powers. So also the appointment of a receiver by the judgment in an
administration action need not be continued by the order, no further
consideration.”
13. In Law of Receiver, 4th Edn. by James L. High, the following
observation appears at page 985:-
“the functions of a receiver usually terminate with the termination of the
litigation in which he was appointed. And when the bill upon which the
appointment was made is afterwards dismissed upon demurrer, the duties of
the receiver cease as between the parties to the action….. And although
as between the parties to the litigation his functions have terminated with
the determination of the suit, he is still amenable to the court as its
officer until he has complied with its directions as to the disposal the
funds which he has received during the course of his receivership….But an
order of discharge does not necessarily follow, in all cases, because of
the determination of the suit, and the court may, upon sufficient cause
shown, either discharge or continue the receiver, according to the
exigencies of the case.”
14. In our view, when a Receiver is appointed pending suit or appeal, the
prime objective is to preserve the property by taking possession or
otherwise and to keep an account of rent and profits that may be realized
by the Receiver and to submit it before the court till the lis is finally
decided. Ordinarily the function of receivers who are appointed comes to
an end with the final decision of the case. However, even after the final
decision, the Court has the discretion to take further assistance of the
Receiver as and when the need arises. In the instant case, admittedly, the
appellants have already put the decree in execution for recovery of
possession. We are, therefore, of the opinion that the Executing Court
while executing the decree may take assistance of the Receiver or by
appointing new Receiver or Commissioner for effecting delivery of
possession in accordance with law and not more than that.
15. In the facts and circumstances of the case, we do not find any error
in the impugned order passed by the High Court. The Civil Appeals are,
therefore, of no merit and are dismissed.
…………………………….J.
[ M.Y. Eqbal ]
…………………………….J
[Kurian Joseph]
New Delhi
February 27, 2015
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