Through this civil revision under Section 115, CPC, the petitioner has challenged the orders dated 20.12.2018 and 6.2.2019 whereby the learned trial Court as well as the learned appellate Court have concurrently allowed the application under Order XL Rule 1(a) CPC and appointed the receiver .
2. Brief facts giving rise to the filing of this civil revision are that Respondents No. 1 to 3 filed a suit for partition of property , namely , Khewat No. 1761, Khatooni No. 1785 measuring 6 marlas 8 sarsai, Khewat No. 1756, Khatooni No. 1780 measuring 03 marlas 07 sarsai Sakni Tehsil and District Sahiwal to the extent of share of property left by the deceased; Ghulam Ghaus in their capacity as his legal heirs, against the petitioner and Respondents No. 4 to 8 in which a preliminary decree was passed on 05.11.2015" and the local commission was appointed to ascertain the divisibility or evaluation of the said and on the basis of his report filed on 4.1.2016 the learned trial Court fixed the reserved price of Rs. 5,00,00,000/- (five crore) on 09.02.2016, on the basis of the government schedule and passed the order dated 21.04.2016 which was however set-aside by the revisional Court on 23.05.2017, and the reserved price was changed to Rs. 6,42,00,000/-. However , the auction could not be conducted. Meanwhile, the Respondents No. 1 to 3 filed an applicatio n under Order 40 Rule 1(a) CPC to appoint a receiver for collection of the rent of disputed property , which was allowed on 20.12.2018 and the revision petition preferred by the petitioner was also dismissed on the reasons that after the filing of the suit for partition in the year 2012, a preliminary decree was already passed exparte on 05.11.2015, whereafter on 04.01.2016 the local commission submitted a report about the indivisibility of the property but no serious efforts were made to auction the property comprises of 8/9 shops either internally or externally . However , nothing was paid to the respondent seeking partition since the preliminary decree of mesne profit was passed on 05.11.2015 showing their conduct. It was, therefore, observed that the Respondents No. 1 to 3 being the legal heirs were deprived of their rights of receiving rent as per their share. The Civil Nazir was therefore appointed as Receiver for Rs. 5000/- as monthly , fee to collect future rent as the Respondents No. 1 to 3 have made out a prima-facie case. The possession of the property with receiver was found essential to safeguard the interest of the shareholders since the possession of receiver is always considered as possession of the Court.
3. Learned counsel for the petitioner submits that Respondent No. 1 is not the widow of Ghulam Ghaus as she had got a divorce from him and that the inheritance mutation was illegally sanctioned. He adds that under section 9 of the Punjab Partition of Immovable Property Act, 2012 only upon the agreement of all the shareholders of the immovable property a receiver can be appointed.
4. Arguments heard. File perused.
5. After hearing the learned counsel for the petitioner and perusing the record, it is found that the subject of discussion is the scope of Order 40 Rule 1(a) CPC which is reproduced as under: "1. Appointment of receivers.-- (1) Where it appears to the Court to be just and convenient, the Court may be order --
(a) Appoint a receiver of any property , whether before or after decree;
(b) Remove any person from the possession or custody of the property; (c) Commit the same to the possession, custody or management of the receiver; and
(d) Confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property , the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers-as the Court thinks fit.
6. A perusal of the said provisions reveals that if it is so justified, the civil Court can appoint a Receiver of property before or after the decree, and can also remove any person from possession or custody of the property , and can also give the possession of such property to the Receiver by conferring powers for realization, management, protection, improvement of property , And to collect rents & profits and dispose of such rent and profits. However , if a party has no right to remove a person from the possession of the property , such possession shall not be taken.
7. Admittedly , the possession of the property is with petitioner and Respondents No. 4 to 8 and nothing was so far paid to the Respondents No. 1 to 3 and they also have not cooperated to internally auction of the property on the basis of the reserved price. The argument advanced by the learned counsel for the petitioner that under section 9 of the Punjab Partition of Immovable Property Act, 2012, a receiver can be appoin ted only after the consensus in writing amongst all the co-owners for a time to be regulated by the Court. However , such referee is appointed only for partition and not for collecting mesne profits, rent etc. for its distribution to the others shareholders. Under section 10, it can conduct internal auction and under section 11, it can conduct an open auction, but the referee in the present case was appointed for collection of rent.
8. The impugned order was passed in line of the dictum followed by a Division Bench of Sindh High Court in case titled 'Pir- Omar Khayyam vs. Mrs. Ruby Hameedullah and 7 others " reported as 2014 YLR 1654 and case titled "Mst. Hussan Jamala and another vs. Government of Khyber Pukhtunkhwa through Secretary , Home and Tribal Affairs, Peshawar " reported as PLD 2013 Peshawar 1, wherein it was held, while following the judgments of the Indian Supreme Court, that receiver has to be appointed where the case of emergency is made out keeping in view the conduct of the parties aimed at constantly depriving the other party for their right to share the profit in the joint property . It was rightly appointed in a view to safeguard the interest of all the shareholders.
9. For what has been discussed above, this Court has not found any illegality or defect to interfere into the concurrent findings recorded by the Courts below . Resultantly , this civil revision is. dismissed in limine .