ORDER XL – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XL. APPOINTMENT OF RECEIVERS

 

1. Appointment of receivers

 

(1) Where it appears to the Court to be just and convenient, the Court may by order-

 

(a) appointment 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 those powers as the Court thinks fit.

 

(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XL, in rule (1), in sub-rule (2), after the words “any person”, insert a comma and the words “not being a party to the suit,”.

 

[Vide Notification No. 2875/35(a)-5(2), dated 10th July, 1943].

Karnataka.-Same as in Allahabad.

 

2. Remuneration

 

The Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver.

 

3. Duties

 

Every receiver so appointed shall-

 

(a) furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property;

 

(b) submit his accounts at such periods and in such form as the Court directs;

 

(c) pay the amount due from him as the Court directs; and

 

(d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Karnataka.-Same as in Madras with the following modifications:-

(i) in clause (a), for the words “in the movable property”, substitute the words “in such form and”.

 

(ii) in clause (b), for the words “at such periods and in such forms as”, substitute the words “at such time and in such form as the Court may direct or”, (w.e.f. 30-3-1967)

 

Kerala.-Same as in Madras with the modification that in clause (a), for the word “movable”; substitute the word “immovable”.

 

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

 

Madras.-In Order XL, in rule 3, for clauses (a) and {b), substitute the following clauses, namely:-

 

“(a) unless the Court otherwise orders, furnish security in the movable property for such amount as the Court thinks fit duly to account for what he shall receive in respect of the property of which he is appointed a receiver.

 

(b) submit his accounts at such periods and in such forms as may be prescribed.”

 

[Vide P Dis. No. 577 of
1944.]

 

4. Enforcement of receiver’s duties

Where a receiver-

 

(a) fails to submit his accounts at such periods and in such form as the Court directs, or

 

(b) fails to pay the amount due from him as the Court directs, or

 

(c) occasions loss to the property by his wilful default or gross negligence,

the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from his or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XL, for rule 4, substitute the following rule, namely:-

 

“4. Enforcement of receiver’s duties.-(i) If a receiver fails to submit his account at such periods and in such form as the Court directs, the Court may order his property to be attached until he duly submits his accounts in the form ordered.

 

(2) The Court may, at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion, at any time not beyond three years from the date of his discharge by the Court, make an inquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss to the property has been occasioned by his wilful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceeding and the receiver shall be made parties to any such inquiry. Notice of the inquiry shall be given by registered post prepaid for acknowledgment to the surety, if any, for the Receiver, but the cost of his appearance shall be borne by the surety himself, unless the Court otherwise directs

 

Provided that the Court may, where the account is disputed by the parties and is of a complicated nature, or where it is alleged that loss has been occasioned to the property by the wilful default or gross negligence of the Receiver, refer the parties to a suit. In all such cases, the Court shall state in writing the reasons for the reference.

 

(3) If the Receiver fails to pay any amount which he has been ordered to pay under sub-rule (2) of this rule, within the period fixed in the order, the Court may direct such amount to be recovered either on the security (if any) furnished by him under Rule 3, or by attachment and sale of his property, or, if the property has been attached under sub-rule (1) of this rule, by sale of the property so attached, and may apply the proceeds of the sale to make good any amount found due from him or any loss occasioned by him, and shall pay the balance (if any) of the sale proceeds to the Receiver.” (w.e.f 1-10-1983)

 

Karnataka.-Same as in Madras with the following modification:-

In sub-rule (1), for the words “in the form ordered”, substitute the words “in the manner ordered”, (w.e.f. 30-3-1967)

 

Kerala.-Same as in Madras with the addition of the following marginal note to the rule:-

 

“Enforcement of receiver’s duties”

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madras.-In Order XL, for rule 4, substitute the following rule 4, namely:-

“4. (1) If a receiver fails to submit his accounts at such periods and in such form as the Court directs, the Court may order his property to be attached until he du
ly submits his accounts in the form ordered.

 

(2) The Court may, at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion, at any time make an enquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss to the property has been occasioned by his wilful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceeding and the receiver shall be made parties to any such enquiry. Notice of the enquiry shall be given by registered post to the surety, if any, for the receiver, but the cost of his appearance shall be borne by the surety himself unless the Court otherwise directs:

 

Provided that the Court may, where the amount is disputed by the parties and is of a complicated nature or where it is alleged that loss has been occasioned to the property by the wilful default or gross negligence of the receiver, refer the parties to a suit. In all such cases the Court shall state in writing its reasons for the reference.

 

(3) If the receiver fails to pay, any amount which he has been ordered to pay under sub-rule (2) of this rule within the period fixed in the order, the Court may direct such amount to be recovered either from the security (if any) furnished by him under rule 3, or by attachment and sale of his property, or, if his property has been attached under sub-rule (1) of this rule, by sale of the property so attached, and may apply the proceeds of the sale to make good any amount found due from him or any loss occasioned by him and shall pay the balance (if any) of the sale proceeds to the receiver.”

 

[Vide P Dis. No. 60 of 1933.]

 

5. When Collector may be appointed receiver

Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector appoint him to be receiver of such property.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Karnataka.-In Order XL, after rule 5, insert the following rule, namely:-

“6. Where the property belongs to a co-operative society, registered under an appropriate statute or to a member of any such co-operative society, and the Court considers that the interests of those concerned will be promoted by the management thereof by an officer of the Co-operative Department, the Court may with the consent of such officer, appoint him to be receiver of such property.” (w.e.f. 8-1-1987)

 

Madras.-In Order XL, after rule 5, insert the following rule, namely:-

“6. Where the property belongs to a co-operative society registered under the Madras Co-operative Societies Act or to member of such co-operative society, and the Court considers that the interest of those concerned will be promoted by the management of an officer of the Co-operative Department, the Court may, with the consent of the officer, appoint him to be receiver of such property.”

 

Andhra Pradesh.-In Order XL, after Yule 6, insert the following rule, namely:-

 

“7. Where a receiver had been appointed by a Court under rule 1 of this Order, no such receiver may be sued by any person whether he is party to the said suit or not, except with the leave of the Court appointing the receiver or successor Court on an application mad
e in this behalf and the notice of which is served upon the receiver and all other persons who may, in the opinion of the Court be interested in the subject-matter of the suit”

 

Bombay.-After Order XL, insert the following Order, namely:-

 

“ORDER XLA
CAVEAT RULES

 

“1. Every Caveat under section 148A shall be signed by the Caveator or his Advocate and shall be in the form prescribed.

 

2. Every Caveat shall be presented by the party in person or by his Advocate to the Court or to the Officer authorised to receiver the Caveat. Where the Caveator is represented by an Advocate his Vakalatnama shall accompany the Caveat. When an Advocate instructed by a party to act or appear in a manner has not been able to secure a Vakalatnama in the prescribed form duly signed by the client, he may file written statement signed by him stating that he has instructions from or on behalf of his client to act or appear in the matter and also undertaking to file within a week a Vakalatnama in the prescribed form duly signed by the party.

 

3. The Caveat presented under rule 2 shall be registered in a Caveat Register in ; Form given below. Before an application for any relief is made to the Court in any proceedings, it shall bear an endorsement from the office of the Court whether a Caveat has or has not been filed.

 

4. (1) A copy of the Caveat shall be served along with the notice required to be served under section 148A (2).

 

(2) On receipt of the notice of the Caveat, the applicant or his Advocate, shall intimate to the Caveator or his Advocate, the expenses for furnishing the copies and request him to collect the copies on payment of the said expenses. The, said expenses-should be at the rate of 25 paise per folio of 100 words inclusive of cost of paper.

 

5. Every application for any relief in a proceeding should be supported by a statement on oath of the applicant stating that no notice under section 148A (2) is received by him or if received whether the applicant has furnished the copies of the application together with the copies of the paper or documents which have been filed or may be filed in support of the application to the Caveator as required by section 148A (4).

 

6. A notice under section 142A (3) may be served on the Caveator or his Advocate personally or by post Under Certificate of Posting. The notice sent Under Certificate of Posting at the address furnished by the Caveator shall be deemed to be sufficient service on him.

 

7. Where it appears to the Court, that the object of granting ad interim relief on the application would be defeated by delay, it may record reasons for such opinion and grant ad Interim relief of the application of the applicant till further orders after giving the Caveator an opportunity of being heard.

 

FORM OF CAVEAT

 

In the Court of……………………………………………..At…………………………………………………….
Suit/Petition/Appeal No…………………………………………….19………/20 ……

In the matter of :

 

Caveat under section 148A of the Code of Civil Procedure

………………………………………………………………………Caveator.

 

Pay that no orders be passed without due notice under section 148A of the Code of Civil Procedure to the Caveator above named in any application for ……………………………(State in short reliefs to be prayed for) in Suit Petition/Appeal No……………………of 19……/20……of this Court (or in Suit/
Petition/Appeal likely to be filed in this Court) wherein………………… is/may be Plaintiff/Petitioner/Appellant and…………………is/may be the Defendant/Respondent.

The Caveator’s address for service is……………………………………………………………….

The Caveator undertakes to the Court to give notice by Registered Post A.D. to…………………the Plaintiff/Petitioner/Appellant above mentioned, at the following address………………………

 

Caveator…………….

 

REGISTER OF CAVEAT

(O. XL-A, rule 3

In the Court of the…… of …… at Register of Caveat in the year, 19…./20….

 

Srl No. Dt. of Caveat Name of Caveator and his address for service Nature of proceeding anticipated by caveat or and its number if same is filed Name of plaintiff Applicant in the proceeding in column No. 4 Name of defendant Respondent the pro­ceeding in column No. 4 Date and number of proceeding filed as anticip­ated by Caveator Date of notice served on Caveator

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Civil Procedure Code 1908

 

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