Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 436 of 1987 Appellant :- Kanchan Prasad and others.
Respondent :- Mahadeva Nand Giri and others.
Counsel for Appellant :- Sripat Narain Singh, Ishir Sripat, Satyendra Pandey Counsel for Respondent :- S.N.Shukla, Rahul Sripat, Sanjay Shukla, Satendra Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Ishir Sripat, learned counsel for appellants and Sri Sanjay Shukla and Sri Satendra Singh, learned counsel for the respondents.
2. Present appeal has been preferred against the
2. Facts in short are that appellants-plaintiffs filed an application under Section 14 of Religious Endowment Act, which was allowed and sanction was granted on 8.10.1982. Thereafter, appellants-plaintiffs filed Suit No.1 of 1982 seeking injunction to restrain the respondents-defendants from alienating the Math property in suit and making any change in the property by raising construction or demolishing/damaging the property or cutting trees standing over the said property. Defendant no.1 moved an application for cancellation of sanction order dated 8.10.1982, which was rejected by District Judge, Deoria whereby sanction order dated 8.10.1983 was confirmed. Plaintiffs in the plaint claimed that the property belonged to Math while defendant denied the property in dispute belonging to Math and claimed personal rights. On 19.1.1984 after hearing both the parties, learned Additional District Judge rejected the objections filed by the defendants and passed an interim order restraining the defendants from transferring property of Math and making constructions, fixing chimney, digging out earth and felling trees. When interim injunction was not obeyed, the appellants filed an application to appoint a receiver in order to ensure preservation and protection of suit property. On 25.3.1987, the Additional District Judge, Deoria dismissed the application for appointment of receiver. Dissatisfied with the said order plaintiffs filed present appeal before this Court.
3. The appointment of receiver cannot be barred by res judicata once the learned District Judge has made his mind for appointment of receiver but refrained such appointment on an undertaking given by the respondents. The respondents flouted the orders and, therefore, fresh applications were made. However, there was no dismissal of earlier applications filed by plaintiffs-appellants. Thus, the order impugned is bad and erroneous.
4. Going through the record, it is very clear that the respondents herein has been in a habit of not obeying the orders of the court. The application can be made, if it is proved that the appointment of receiver is inevitable. The factual scenario in this matter goes to show that it was inevitable to appoint receiver. Moreso, almost 38 years have elapsed but suit is still pending.
5. In view of the aforesaid, impugned order dated 25.3.1987 passed by the Additional District Judge, Deoria is set aside. The court below shall appoint receiver at the earliest not later than 31st January 2019.
6. Disposed of.
Order Date :- 17.12.2019 Ram Murti