Ali Akbar (Md) and othters VS Sakina Begum and others[56 DLR (HCD)2004]
Appeal from Joint District Judge, Dhaka (Arbitration Misc. Case No.95 of 1997)
Background of the Appeal: The appellants, defendant Nos.1 to 4 challenged an order from the Joint District Judge and Artha Rin Adalat No. 2 in Dhaka in Title Suit No. 95 of 1997. The order appointed a receiver of the suit property based on an application filed by the respondent. Then 3-7-2001 the plaintiffs application under section 151 of the Code of Civil Procedure for appointment of a receiver for maintenance, preservation, protection and management of the suit property and also for collection of rents and profits. On 9-9-2001 defendants opposed claim by filing a joint written objection. The application on 15-1-2002 and allowed by Joint District Judge by the impugned order and Mr AKM Enamul Huq Advocate was appointed accept at wage of Taka 5,000 per month.
Issues: Validity of the deed partition (No. 8692 executed on 10-8-1991) and related affidavits were fraudulent, illegal, void, and not binding. They sought a 2/5th share of the suit property.The applied for a receiver under Order XL rule 1(a) of the Code of Civil Procedure, citing deprivation of their share in the ancestral property and alleged misappropriation of rents and profits. The defendants opposed the application, claiming an amicable partition in 1991 and asserting that the respondents had no right to the suit property after the partition.
Judgment: The High Court Division dismissed the appeal.Appellants counsel Mr. Mahmudul Islam claimed an amicable partition in 1991 and asserted that the application was baseless. He cited cases to support his argument.Respondent counsel: Mr. Fazlul Karim representing the respondents defended the application for a receiver, stating that the plaintiffs were being deprived of their share.The court considered the circumstances, including the application, opposition, and the history of the suit property.It noted that the parties were in separate possession of the property since the 1991 partition.The court principles for appointing a receiver.The power should be sparingly used.It should safeguard the interests of parties and property.Possession of those in occupation should not be disturbed without clear reasons.In a family partition, no receiver should be appointed without consent except in extreme cases.The Joint District Judge decision to appoint a receiver was found to be in serious error.The court concluded that introducing a third party as a receiver might result in mismanagement or harm to the property.The appeal was Accepted and the appointment of the receiver was set aside and the application for a receiver was rejected.The court directed the Joint District Judge to proceed with the suit expeditiously.
Comments: In this case, since the parties were in separate possession since the 1991 partition, and there were doubts about the deed of partition, the appointment of a receiver was deemed unnecessary and potentially harmful to the property’s management. The appeal was allowed, the appointment of the receiver was set aside, and the Joint District Judge was directed to proceed with the suit expeditiously. The court emphasized the need for caution and strong reasons before appoint a receive in partition suits.
Appeal from Joint District Judge, Dhaka (Arbitration Misc. Case No.95 of 1997) Background of the Appeal: The appellants, defendant Nos.1 to 4 challenged an order from the Joint District Judge and Artha Rin Adalat No. 2 in Dhaka in Title Suit No. 95 of 1997. The order appointed a receiver of the suit…