Arul Nayagam and Krishna Arul Vs Y. Subba Rao, Y. Ramalakshmi and G. Gopalaraman

R. Banumathi, J.@mdashChallenge in these appeals is the common order in O.A. Nos. 1197 and 1198 of 2008 and A. No. 5792 of 2009 in C.S. No. 1042 of 2008 dated 07.07.2011 granting temporary injunction restraining the Appellants 1 and 2 from in any way dealing with or alienating by way of sale, lease or mortgage, any part of the suit property pending disposal of the suit and appointing the 1st Respondent-Subba Rao as Receiver to manage the entire suit property and to collect the rental income periodically and file report once in three months and dismissing the application for rejection of plaint C.S. No. 1042 of 2008. Arguments in all three Original Side Appeals were heard together and all three Original Side Appeals shall stand disposed of by this common Judgment.

2. Briefly stated case of Respondents/Plaintiffs is as follows:

(i)Respondents 1 and 3 are owners of ''A'' and ''B'' schedule properties respectively in Plot No. 617 and 618 situated at Indira Nagar comprised in S.F. Nos. 51 (Part) and 55 (Part) of Tiruvanmiyur. 1st Respondent is the owner of 2 grounds and 870 sq. ft. and 3rd Respondent is the owner of 2 grounds 1104 sq. ft. both together measuring 4 grounds 1974 sq. ft. i.e. 11, 574 sq. ft. In order to develop both the plots, Respondents 1 and 3 and 1st Appellant have entered into a Joint Development Agreement on 14.10.1992 and possession of the property was handed over to the 1st Appellant on the same date by Respondents 1 and 3. Respondents 1 and 3 have also given power of attorney to 1st Appellant on 25.01.1993 under Doc. Nos. 29 and 30 of 1993. There after, both Respondents 1 and 3 and 1st Appellant have entered into a Memo of Understanding (MOU). As per the Joint Development Agreement dated 14.10.1992, 1st Appellant should complete the construction of the superstructure within 24 months from the date of taking vacant possession of the property. As per the original Joint Development Agreement, the project should have been completed on or before 14.10.1994, but the 1st Appellant could not complete the construction as agreed. Thereafter, another MOU dated 02.12.1993 was entered into between the parties whereby the 1st Appellant agreed to complete the construction on or before 31.01.1996.

(ii)As per the original plan, 1st Appellant had applied for planning permission for the construction of basement; ground floor and further three floors for residential building. Subsequently, 1st Appellant had given revised plan on 05.10.1994, 02.12.1994 and 28.06.1995 respectively. As per the revised plan, sanction was obtained for (a) Basement; (b) Ground floor; (c) Mezzanine and three floors. In violation of the approval and rules, 1st Appellant has converted the mezzanine floor as a pucca floor and thereby special building has been converted to multi-storied building. Without handing over possession of the built up area, 1st Appellant has rented the same to third parties and collecting the rents every month.

(iii)As per MOU dated 02.12.1993, Respondents 1 and 3 together are entitled to 50% of the built up area. 1st Respondent shall take 25% in the area of basement, ground floor and mezzanine floor. 3rd Respondent had entered into a sale agreement on 29.11.1997 with the 1st Appellant to sell his share of built up area and also undivided share of land for a total sum of Rs. 93,00,000/-, out of which a sum of Rs. 18,30,000/-has been paid by the 1st Appellant on various dates and the balance is Rs. 74,70,000/-. Since 1st Appellant has failed to perform his part of contract, Respondents 1 and 3 have filed suit C.S. No. 179 of 1999 and C.S. No. 202 of 1999 respectively for specific performance and 1st Appellant had also filed suit in C.S. No. 277 of 1999 for specific performance and parties have entered into a compromise in C.S. No. 277 of 1999. As per the compromise dated 30.04.2001 deducting Rs. 18,30,000/-, balance sale consideration of Rs. 74,70,000/-is to be paid by the 1st Appellant to the 3rd Respondent within six months. In the said compromise, 1st Appellant agreed to hand over the built up area to the 1st Respondent. Though as per the Joint Development Agreement, the owners [Respondents 1 and 3] and developer [1st Appellant] are entitled to take alternative built up area in each floor and that has been modified in the compromise memo dated 30.04.2001 by which Respondents 1 and 3 have agreed to take either in the first floor or second floor.

(iv)Even though five years period lapsed, 1st Appellant did not make either payment to the 3rd Respondent or handed over possession of the built up area to the 1st Respondent as agreed. Since the 1st Appellant had violated the rules and Regulations in putting up construction the whole construction had become unauthorised. Alleging the violations, 1st Respondent has filed W.P. No. 41435 of 2005 and the Court has directed the parties to make representation to the Commissioner of Corporation. On 02.11.2007, the Commissioner, Corporation of Chennai has passed an order that the construction is "unauthorised" and that the same is to be demolished.

3. In these factual background, the Respondents have filed the suit C.S. No. 1042 of 2008 seeking for the reliefs:

(i) declaration that the compromise decree dated 30.04.2001 in C.S. No. 277 of 1999 is null and avoid;

(ii) directing the Appellants to pay a sum of Rs. 2,50,000/-per month to the credit of the suit from September 2008 till Appellants hand over possession of the property;

(iii) declaration that the Joint Development Agreement dated 14.10.1992 is null and void in view of the violations committed by the 1st Appellant and also not getting the building sanction from the authorities; and

(iv) permanent injunction restraining the Appellants their men and agents in dealing with the entire suit property in any manner by way of sale, lease or any mode of conveyance or claiming any right based on compromise decree dated 30.04.2001 in C.S. No. 277 of 1999.

Pending suit, Respondents have filed O.A. Nos. 1197 and 1198 of 2008 seeking (i) to appoint the 1st Respondent as Receiver to manage the entire suit property; and (ii) interim injunction restraining the Appellants, their agents or servants in dealing with the entire suit property in any manner by way of sale, lease or any mode of conveyance, claiming any right based on the compromise decree dated 30.04.2001 and to collect the rents from the suit property.

4. Resisting O.A. Nos. 1197 and 1198 of 2008, 1st Appellant has filed counter stating that 3rd Respondent has failed to obtain clearance from the Income Tax Department which is a mandatory obligation on his part in the compromise decree. According to Appellants, 1st Appellant had obtained planning permit and also obtained building plan from CMDA and application for building permit was approved by the Corporation. It was further averred that as per the decision of the Supreme Court, the construction made prior to 28.02.1999 is entitled for regularisation as one time measure. Appellants alleged that Respondents 1 and 3 are to comply with the terms of the compromise to get their allotted share and without doing so, Respondents 1 and 3 have filed the vexatious suit.

5. 1st Appellant had filed A. No. 5792 of 2009 to reject the plaint C.S. No. 1042 of 2008 alleging that based on compromise memo, compromise decree was passed in C.S. No. 277 of 2009 and that the Court has no jurisdiction to decide the validity of its own decree. That too, by its order dated 08.04.2003 in O.S.A. No. 96 to 98 of 2003 when the Division Bench has expressed its opinion that it is open to the parties to get the compromise decree executed. Rejection of the plaint was also sought on the ground that the building in question was constructed after obtaining planning permission from CMDA and therefore, there is no question of unauthorised building and the suit [C.S. No. 1042 of 2008] is clear abuse of process of law. Since, decree in C.S. No. 277 of 2009 was passed based on the compromise memo, as per the provisions under Order 23, Rule 3A Code of Civil Procedure, the suit is barred.

6. Resisting the application, Respondents have filed counter contending that by the order of the Commissioner, Corporation, Chennai dated 02.11.2007, the building is unauthorised building. According to Respondents, C.S. No. 1042 of 2008 was filed totally on a different cause of action and the compromise entered between the parties on 30.04.2001 has become null and void because of the subsequent conduct of the 1st Appellant. It is further averred that because of the statutory violations committed by the 1st Appellant, compromise decree dated 30.04.2001 passed in C.S. No. 277 of 2009 cannot be implemented and became void and therefore, there is no impediment for the Respondents in filing the present suit.

7. Upon consideration of rival contentions, learned Judge held that since several things happened after the compromise decree, the objections raised by the Appellants do not fall under any of the parameters contained in Order VII, Rule 11 CPC Learned Judge further held that since the construction was not in conformity with the approved building plan, it is open to the Respondents to take a stand that the compromise decree fell through and on those findings, dismissed A. No. 5792 of 2009 filed by the 1st Appellant. Insofar as the Receiver application, pointing out that 1st Appellant had alienated three floors in the entire complex of six floors to his wife [2nd Appellant] and that the entire six floors are in occupation of the 1st Appellant and his wife and that the original owners have been left in the lurch and observing that rights of the Respondents have to be safeguarded, learned Judge appointed the 1st Respondent-Subba Rao as Receiver to manage the suit schedule property. Learned Judge also granted interim injunction restraining the Appellants from in any way dealing with or alienating by way of sale, lease or mortgage, any part of the suit property.

8. Challenging the impugned findings, Mr. T.V. Ramanujam, learned Senior Counsel appearing along with Mr. S.S. Rajesh has contended that Respondents 1 and 3 have not performed their part of obligations by obtaining clearance from the Income Tax Department and other appropriate authorities and while so, 1st Appellant cannot be faulted. It was further contended that already a compromise decree came to be passed in C.S. No. 277 of 2009 and as per Order 23, Rule 3A CPC there is a clear bar to file a suit to set aside the compromise decree on the ground that it is vitiated by fraud. Taking us through the pleadings, it was further argued that absolutely there is no pleading as to how the compromise decree is vitiated and while so, learned Judge erred in appointing a Receiver for the entire suit property.

9. Reiterating the findings of the learned Judge, on behalf of Respondents learned Senior Counsel Mr. R. Muthukumarasami appearing along with Mr. P. Subba Reddy has submitted that inspite of the specific understanding in the compromise decree in C.S. No. 277 of 2009, 1st Appellant has not handed over the possession and is in enjoyment of the entire built up area thereby unjustly enriching themselves. It was further submitted that the special building has been converted into a multi-storied building for which building Regulations for the set back area is totally different and the violations have rendered the entire building as an unauthorised one.

10. The undisputed facts are that as per the original Joint Development Agreement, the construction of the building is to be basement, ground floor and three floors. Out of which, Respondents 1 and 3 together to get 50%. After the plan was revised [30.04.1996], sanction was obtained for basement, ground floor, mezzanine floor and four floors and out of the built up area, Respondents 1 and 3 together to get 50% of the built up area. 1st Respondent is to get 25% of the built up area in basement, ground floor and mezzanine floor. In November, 1997, 3rd Respondent agreed to sell 50% of his undivided share in the land and 25% of the built up area to the 1st Appellant for a sum of Rs. 93,00,000/-. In view of the differences between the parties, 1st Appellant had filed suit C.S. No. 277 of 2009 for specific performance. Respondents have also filed other suits C.S. Nos. 179 of 2009 and 202 of 2009. All the parties have settled their differences and arrived at a compromise and Memorandum of compromise was recorded in C.S. No. 277 of 2009 on 30.04.2001. In the impugned order, the learned Judge has extracted in full the entire compromise memo and therefore, we do not propose to repeat the extraction of compromise memo. Suffice it to note the relevant salient features of the compromise memo:

Respondents 1 and 2 who were Defendants 2 and 3 in C.S. No. 277 of 2009 have given up their right in the suit property and confirmed that 1st Appellant who was Plaintiff in C.S. No. 277 of 2009 was entitled to buy the property from the 3rd Respondent as per the sale agreement dated 29.11.1997.

Respondents 1 and 2 to withdraw all the suits filed by them against the 1st Appellant-Arul Nayagam in C.S. Nos. 179 & 202 of 1999 and Tr. Suit Nos. 392 and 393 of 2000 and C.S. No. 18 of 2000 filed against the 1st Appellant by Respondents 1 and 3 and also the criminal complaints filed against the 1st Appellant and make necessary paper publications in Tamil and English daily about the withdrawal of all suits and pending litigations.

In the compromise, Respondents 1 and 3 have declared that execution of all deeds so far done by them cancelling alienation made by 1st Appellant-Arul Nayagam stand withdrawn, cancelled and non est.

3rd Respondent-Gopalaraman to execute necessary deed of ratification/rectification or such deeds that may be necessary either independently or along with 1st Respondent-Subba Rao.

In pursuance of the agreement dated 29.11.1997, 1st Appellant-Arul Nayagam has to pay Rs. 93,00,000/-to the 3rd Respondent-Gopalaraman. Already a sum of Rs. 18,30,000/-has been paid to the 3rd Respondent and the balance payable by the 1st Appellant-Arul Nayagam is Rs. 74,70,000/-as per the schedule indicated in the decree of compromise.

As per the terms of compromise, for convenient enjoyment, 1st Respondent has agreed to take up equal area either in first floor or in second floor instead of the area allotted in basement floor, ground floor and mezzanine floor as mutually agreed.

11. According to Respondents 1 and 3, they have performed their obligations as per the terms of compromise and they have cancelled all the documents executed by them and have also withdrawn all the criminal complaints and performed other obligations. Per contra, 1st Appellant did not perform his obligations under the compromise decree.

12. The rights and obligations of the parties in the compromise decree is reciprocal in nature. As pointed out earlier, Respondents have withdrawn all the cases and have also said to have executed necessary deeds of rectification/ratification and also cancelled the agreement of sale dated 07.10.1997 and the mortgage deed dated 28.10.1998. As per the terms of compromise balance sale consideration of Rs. 74,70,000/-has to be paid to the 3rd Respondent as per the time schedule indicated in the compromise decree. But the 1st Appellant did not pay the balance sale consideration of Rs. 74,70,000/-to the 3rd Respondent. As per the terms of compromise, constructed portion of first floor or second floor has to be handed over to the 1st Respondent but the same was not handed over by the 1st Appellant to the 1st Respondent. After the compromise decree, the mezzanine floor has been converted into a full floor and thus special building had been made as a multi-storied building. By various sale deeds, 1st Appellant sold the undivided portion of the land and three floors of built up area to the 2nd Appellant who is none other than his wife. 1st Appellant is said to have failed to perform his part of the obligations under the compromise decree, but enjoying the entire built up area.

13. Learned Senior Counsel for Appellants contended that order of precedence in performance of the obligation is clearly drawn out in the compromise decree as per which the Respondents will have to discharge their obligations first and only then the 1st Appellant could have handed over possession of 25% of the constructed area to the 1st Respondent and pay the balance sale consideration of Rs. 74,70,000/-to the 3rd Respondent. It was further submitted that the obligations vested on the parties is reciprocal in nature and when the Respondents have not performed their part of obligations, they cannot make allegations against the 1st Appellant. Learned Senior Counsel would further contend that as required under Chapter XX (C) of Income Tax Act, Respondents have not obtained necessary clearance from the Income Tax Department and the Respondents have not performed their part of obligations, cannot maintain a fresh suit for setting aside the compromise decree in C.S. No. 277 of 2009.

14. Learned Senior Counsel appearing for Respondents has drawn the attention of this Court that 1st Appellant is demanding "no objection certificate" from the Income Tax Department, but even as early as on 01.06.2001 by the Finance Act, 2001, Section 230A of Income Tax Act was abolished. Only u/s 230A, there was a restriction on the registration of transfer of immovable property in certain cases where there was a mandatory requirement to obtain clearance certificate from the Income Tax Department. On the abolition of the very Section itself right from 01.06.2001, there is no need or necessity to obtain any certificate u/s 230A of Income Tax Act. Therefore, nothing prevented them from registering the deed. Hence the claim at this stage that because of the income tax clearance certificate not being obtained or "no objection certificate" produced, further action could not be conducted or carried forward is not legally sustainable.

15. As far as, Section 269UC of Income Tax Act which also provides for getting clearance certificate from the Income Tax Department. After 01.07.2002, the so called clearance certificate is not required because Section 269UP has been inserted by Finance Act, 2002 w.e.f. 01.07.2002 which clearly says that Chapter XXC not to apply where transfer of immovable property effected after certain date. u/s 269UP, it is made clear that the provisions of Chapter XXC shall not apply to, or in relation to the transfer of any immovable property effected on or after 01.07.2002. Therefore, when Section 230A has been abolished w.e.f. 01.06.2001 and Section 269UC has also been abolished w.e.f. 01.07.2002, u/s 269UP the contention of Appellants that Respondents have to obtain necessary clearance from the Income Tax Department does not stand any scrutiny at all. Therefore, it is futile at this stage to raise the point as to Respondents have to obtain clearance certificate from the Income Tax Department.

16. As per Order 23, Rule 3A Code of Civil Procedure, no suit shall lie to set aside the decree on the ground that the compromise on which the decree is passed was not unlawful. Order 23, Rule 3A CPC prohibits a suit to set aside a decree on the ground that the compromise on which the decreed is passed was not lawful.

17. As per order 7, Rule 11 (d) CPC plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. Order 7, Rule 11 (d) CPC applies only when the suit appears from the statement in the plaint to be barred by any law. In their plaint [C.S. No. 1042 of 2008], Respondents have clearly averred as to how the 1st Appellant-Builder has flouted the terms of compromise. Plaint also sets forth the subsequent conduct of the 1st Appellant in not abiding the terms of the compromise. Plaint also elaborates upon the deviation from the building plan as to how the special building has been converted into a multi-storied building and thereby rendering the entire building as an unauthorised one. Hence, the plaint is not on the basis of the compromise decree; but the plaint averments proceed on the footing that the 1st Appellant has not performed his obligation under the terms of compromise; whereas 1st Appellant had taken only the benefits flowing out of the compromise.

18. Plaint [C.S. No. 1042 of 2008] clearly sets forth the averments:(i) 1st Appellant has not handed over possession of the built up area of first floor or second floor to the 1st Respondent; (ii) 1st Appellant has not paid the balance sale consideration of Rs. 74,70,000/-to the 3rd Respondent; (iii) By conversion of special building into multi-storied building, there is violation of building Regulations and the Corporation has declared the building as "unauthorised" one. In view of the above aspects, Respondents allege that the compromise had become inoperative and based on those averments, seek for declaration that the compromise decree is null and void. In our considered view, the plaint does not fall under the specific bar under Order 23, Rule 3A CPC There is no force in the contention of Appellants that the suit is barred by any law.

19. 1st Respondent-Y. Subba Rao filed O.S. No. 1527 of 2002 before the II Asst. Judge, City Civil Court, Chennai. In the said suit he had filed I.A. No. 4570 of 2002 for interim injunction. By the order dated 19.03.2002, II Addl. Judge, City Civil Court, Chennai has granted ad-interim injunction on finding that 1st Respondent has taken the first floor in terms of the compromise memo and is in occupation of it and 1st Appellant had sold the built up area and is now interfering with the peaceful possession and enjoyment of the 1st Respondent of the first floor allotted to him.

20. To nullify the said order, immediately, thereafter, 1st Appellant has filed O.A. No. 162 of 2002 wherein by the order dated 28.03.2002, Mr. C. Ramesh, Advocate was appointed as Advocate-Commissioner to inspect the suit property and to take possession of the first floor and retain the same under lock and key until further orders. Advocate-Commissioner was directed to take assistance of Police in case of any resistance. It was stated that armed with the orders of the Court, 1st Respondent was dispossessed from the first floor and in pursuance of the orders of the Court, Advocate-Commissioner had taken possession of the entire first floor and recorded the facts in his report. Two other applications O.A. Nos. 976 and 977 of 2002 were also filed. Thereafter, all the three applications were taken up for disposal and by the common order dated 26.12.2002, Justice A. Ramamurthi, J issued the following directions:

(1)The Plaintiff is directed to complete the construction in a period of three months from this date in accordance with the approved plan;

(2)The warrant of commission is re-issued to Mr. C. Ramesh, Advocate Commissioner to monitor the construction to be made by the Plaintiff and furnish the status report once in a month before this Court;

(3)The Plaintiff is directed not to sell any built up area to any third party without permission of the Court;

(4)The Plaintiff is directed to file an affidavit showing the monthly rent collected from each of the tenants with names and particulars;

(5)The Plaintiff is also directed to deposit the sum of Rs. 74,70,000/-to the credit of the suit in three months;

(6)The Defendants are directed to co-operate with the Plaintiff as well as the Advocate Commissioner to enable them to complete the construction within the said period; and

(7)On completion of the construction in a period of three months, the Plaintiff is directed to hand over possession to the respective Defendants in accordance with the compromise decree dated 30.04.2001.

21. 1st Appellant has preferred appeal in O.S.A. Nos. 96 to 98 of 2003 against the said order in O.A. Nos. 162, 976 and 977 of 2022. When the appeals came up for hearing, 1st Appellant sought to withdraw those applications [O.A. Nos. 162, 976 & 977 of 2002]. By the judgment dated 08.04.2003, the Appeals were disposed of by the Division Bench as "rendered infructuous" with a clarification that parties are free to execute the compromise decree by taking recourse to the regular execution proceedings. The judgment dated 08.04.2003 reads as under:

Shri T. Rajagopalan, learned senior counsel appearing on behalf of the Appellants, seeks leave to withdraw the Original Application Nos. 162, 976 and 977 of 2002 as the said applications were not maintainable at all, they having been filed after the compromise decree was ordered upon by the court and the judgment passed on that basis. There is no opposition of this move by Shri G. Subramanian, learned senior counsel for the Respondents before us. Hence, the original applications themselves are permitted to be withdrawn. With the result, the Original Side Appeals are rendered infructuous and are disposed of as such. It is clarified that the parties are free to execute the compromise decree by taking recourse to the regular execution proceedings....

22. Contention of Appellants is that in O.S.A. Nos. 96 to 98 of 2003 when the Division Bench has clarified that parties are free to execute the compromise decree by taking recourse to the regular execution proceedings, it is for the Respondents to approach only the Execution Court for executing the compromise decree dated 30.04.2001 and while so, with a view to nullify the effects of the compromise decree, Respondents have filed the present suit C.S. No. 1042 of 2008. Further contention of Appellants is that the present suit seeking to declare the compromise decree as null and void is not permissible under law and Respondents are to avail the remedy only before the Execution Court. Main contention of Appellants is that for any complaints of non-performance of obligations in the compromise decree in C.S. No. 277 of 2009, Respondents ought to have approached only the Execution Court and a regular suit is not maintainable. Much reliance was placed upon the observations in O.S.A. Nos. 96 to 98 of 2003. It was further contended that the allegations raised in the plaint are to be agitated only before the Execution Court and no fresh cause of action has arisen in the present case to file a fresh suit to set aside the compromise decree dated 30.04.2001.

23. There is no force in the contention that the issue has to be raised only before the Executing Court. As pointed out earlier, Appellants are said to have violated the building Regulations and put up unauthorised construction by converting the mezzanine floor into full floor and made the building as multi-storied building from special building and that the entire building has become an "unauthorised" one. The alleged (i) non-performance of the obligations under the compromise; (ii) violation of building Regulations; (iii) failure to obtain building sanction from the Corporation of Chennai; (iv) demolition notice issued by the Corporation of Chennai; and (v) by the order dated 02.11.2007, the Commissioner has declared that the entire building as unauthorised one had given rise to fresh cause action to file a fresh suit. Those issues are to be agitated only in the regular trial when the parties adduce both oral and documentary evidence. Suffice it to note that the observations in O.S.A. Nos. 96 to 98 of 2003 giving liberty to the parties to approach the Executing Court cannot be a ground for rejection of the plaint even without a trial.

24. It was contended that by filing fresh suit C.S. No. 1042 of 2008, Respondents are re-litigating the same issue and that the present suit is an abuse of process of Court. Contending that Respondents cannot re-agitate the same issues in the subsequent suit when the matter already reached finality in the earlier suit, reliance was placed upon K.K. Modi Vs. K.N. Modi and Others, ; 1998 (1) CTC 66 Ranipet Municipality rep. by its Commissioner and Special Officer Ranipet v. M. Shamsheerkhan]; 2006( (3) MLJ 258 (SC) Pushpa Devi Bhagar (deceased) through Lr. Smt. Sadhna Rai v. Rajinder Singh and Ors. and K.K. Swaminathan Vs. Srinivasagam, . As elaborated earlier, present suit C.S. No. 1042 of 2008 has been filed on the subsequent developments. As pointed out earlier, in view of the subsequent developments and non-performance of the obligations and rendering the compromise decree inoperative had given rise to a fresh cause of action and therefore, there is no force in the contention that Respondents are trying to re-agitate the same issues.

25. As pointed out by the learned Judge, the resultant position of all the above events are:(i) that the original owners have lost their property, but did not get the built up areas earmarked to them; (ii) that the amount directed to be paid to the 3rd Respondent under the compromise decree is not paid; (iii) that the portions directed to be handed over to the original owners have also not been handed over. Under the earlier Joint Development Agreement dated 14.10.1992, the proposed constructed area was 17,761 sq. ft. and F.S.I. was 1.50. Out of which Respondents 1 and 3 were entitled to 4252 sq. ft. and 4428 sq. ft. of constructed area respectively. When the plan was sanctioned by CMDA, the F.S.I. 1.50 got increased to 1.92. Ultimately, As pointed out earlier, 1st Appellant alienated part of built up area and all other three floors in the entire complex of six floors in favour of his wife [2nd Appellant]. As Power Agent of Respondents 1 and 3, 1st Appellant is said to have sold portion of the property out of 50% of the share to various persons as under: when the construction was completed, 1st Appellant had put up multi-storied building of a total constructed area of 25,000 sq. ft.

26. As pointed out earlier, 1st Appellant alienated part of built up area and all other three floors in the entire complex of six floors in favour of his wife [2nd Appellant]. As Power Agent of Respondents 1 and 3, 1st Appellant is said to have sold portion of the property out of 50% of the share to various persons as under:-

Total area sold by the 1st Appellant is 5511 sq. ft. and the total sale consideration received is Rs. 14,78,370/-and the 1st Appellant is stated to be in possession of the remaining extent.

27. Contentions of Respondents is that 1st Appellant is collecting the rents from the tenants who are in occupation. Per contra, in the affidavit filed by the 1st Appellant, 1st Appellant has averred that M/S. Federal Bank Limited was tenant since 2004 and had vacated the property in December 2010 and M/S. Jain Housing Limited who was a tenant since 2004 had vacated as early as 2008. In the affidavit, it is further averred that the 2nd Appellant and sister of 1st Appellant are running furniture and gift articles shop on a portion of ground floor and the entire mezzanine floor and a part of first floor. Pointing out that the original owners have been left in lurch and that they have neither been handed over possession nor paid the money stipulated under the compromise decree and that Appellants are guilty of unjust enrichment, learned Judge appointed the 1st Respondent-Y. Subba Rao as Receiver to manage the entire suit schedule property and to collect the rental income periodically and file a report into Court once in three months. In respect of the portion occupied by the 2nd Appellant and sister of 1st Appellant, learned Judge has granted liberty to the Receiver to take out necessary application for fixation of fair monthly rent.

28. Learned Senior Counsel for Appellants contended that learned Judge has gone beyond the scope of compromise and as per the compromise decree, Respondents 1 and 3 would be entitled only to the 2nd and 3rd floors earmarked to the share of them and while so, learned Judge erred in appointing the 1st Respondent as Receiver for the entire building including the portions in the self occupation of the 2nd Appellant and sister of 1st Appellant. Learned Senior Counsel for Appellants would further contend that since Appellants have spent huge money in completion of the building, Appellants are entitled to 50% which is undisputed and while so, appointing the 1st Respondent as Receiver for the entire property including the undisputed 50% share of the Appellants is not valid.

29. Of course, as per the compromise decree dated 30.04.2001, 1st Appellant is entitled to 50% of the built up area. Even though the decree for compromise was passed on 30.04.2001 and inspite of ample time granted to the 1st Appellant and despite the order passed by Justice A. Ramamurthi, 1st Appellant had not chosen to pay the balance sale consideration of Rs. 74,70,000/-to the 3rd Respondent nor handed over possession of the first floor to 1st Respondent.

30. Under Order XL(1) of CPC where it appears to the Court to "just" and "convenient", Court may appoint Receiver of any property whether before or after the decree. The words "just" and "convenient" in Order XL CPC does not mean "just" and "convenient" to one party or other but "just and convenient" according to the judicial notion of what is right and just. The words "just" and "convenient" do not mean that the Court is to appoint a Receiver simply because the Court thought it convenient. They mean that the Court should make the appointment for the protection of rights or prevention of injury accordingly to legal principles. If the applicant for Receivership is likely to suffer irreparable loss by the property remaining in possession of the opposite party, the Receiver may be appointed. As elaborated earlier, the property in L.B. Road, Adyar worth about several crores and they parted with the possession of the property about two decades ago and inspite of compromise decree entered in 2001, 1st Appellant had neither handed over possession to 1st Respondent nor paid the balance sale consideration of Rs. 74,70,000/-to the 3rd Respondent. By retaining the possession of the entire building, 1st Appellant is unjustly enriching himself. In such facts and circumstances, exercising discretion with a view to prevent further irreparable loss, learned Judge has appointed the 1st Respondent as Receiver for the entire property. Considering the circumstances, when the first Court has acted appointing the Receiver, the Appellate Court will not interfere unless the exercise of discretion is shown to be perverse. Taking into account that Respondents who are the original owners of the property have been kept out of possession for more than two decades, in our considered view, learned Judge was justified in appointing the 1st Respondent himself as Receiver for the entire property. Insofar as the portion of property in self occupation of Appellants, the learned Judge has rightly granted liberty to the 1st Respondent to take out necessary application for fixation of fair rent. We however direct the 1st Respondent to deposit the rent collected to the credit of C.S. No. 1042 of 2008 along with the report once in three months.

31. In so far as the application A. No. 1198 of 2008, pointing out the alienation of the property by the 1st Appellant to the 2nd Appellant and to other persons, learned Judge has granted interim injunction restraining the 1st Appellant and his wife [2nd Appellant] from in any way dealing with or alienating by way of sale, lease or mortgage, any part of the suit schedule property pending disposal of the suit. We do not find any improper exercise of discretion warranting interference with the grant of interim injunction.

32. In the result, all the three appeals are dismissed. In so far as O.S.A. No. 246 of 2011, in addition to the filing of the report into Court once in three months, the Receiver/1st Respondent is directed to deposit the rents collected by him from the tenants occupied once in three months to the credit of C.S. No. 1042 of 2008. The order of status quo granted on 01.08.2011 stands vacated. Connected M. Ps. are closed. No costs.