Law: Civil Procedure Code (1908)

Section: 1(2)

Civil Procedure Code (V of 1908), O. XL, r. l(2)-Appoint ment of Receiver-Objection by persons not parties to suit, claiming property to be theirs and in their possession but wrongly included in Schedule of properties attached with plaint-Held : Court must make thorough investigation into claim and arrive at truth or otherwise of such claim. Properties included in the Schedule and taken possession of the same by a Receiver appointed in a proceeding to which the claimants are not parties. In such a situation what is neces sary is that the Court must make a thorough investigation into the claim and arrive at the truth or otherwise of the allegations of the petitioners who are not parties to such a suit. Hamida Rahman and another v. Jamila Khatun and another A I R 1921 Cal. 298 and Prahlad Pd. Modi and another v. Tikaitni Faldani Kumari and another A I R 1956 Pat. 233 rel. JUDGMENT A. S. CHOWDHURY, J.----In this revisional application petitioner's properties are being taken possession of by a Receiver appointed in a suit instituted by the plaintiff and it is claimed that the learned Subordinate Judge erred in law in rejecting the prayer for restraining the Receiver from taking possession thereof. The plaintiffs instituted a suit in respect of a Wakf property and at their instance a Receiver has been appointed in respect of the properties described in the schedule of the plaint. Some of the properties ownership of which is claimed by the petitioner have been wrongfully included in the said schedule petitioner's prayer before the learned Judge was to restrain the Receiver from taking possession of their properties as they were not parties to the suit. Mr. Md. Jani Alam appearing on behalf of the petitioner invites our attention to sub-rule (2) of rule 1 of Order XL of the Code of Civil Procedure which reads as follows :- "Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person (A) whom any party to the suit has not a present right so to remove." Mr. Jani Alain says that he is not a party to the suit. Therefore, the plaintiffs pave no right to remove him from the possession of his properties.…