RAM CHANDRA DEY Vs. JHUMARMAL JAIN AND ORS.
LAWS(GAU)-1958-5-5
HIGH COURT OF GAUHATI
Decided on May 23,1958

Ram Chandra Dey Appellant
VERSUS
Jhumarmal Jain And Ors. Respondents


Referred Judgements :-

RAMJEE V. KOMAN [REFERRED TO]
PALANIAPPA CHETTY V. PALANIAPPA CHETTY [REFERRED TO]
GOPALRAO V. DEVIDAS [REFERRED TO]
S MOHAMMAD ASKARI VS. QAZI SYED NISAR HUSAIN ALIAS MUNEE [REFERRED TO]
KSHITISH CHANDRA ACHARJYA CHOUDHRY VS. RAJA JANAKINATH ROY [REFERRED TO]
NARBADASHANKAR MUGATRAM VYAS VS. KEVALDAS RAGHUNATHDAS [REFERRED TO]


JUDGEMENT

G. Mehrotra, J. - (1.)THIS is an appeal against an order of the Subordinate Judge, Lower Assam Districts, Gauhati by which according to the Appellant he appointed a receiver in a suit. The respondent bought a suit for possession. The Defendant's case was that he was in possession of the property without any right and the Plaintiff had no title to the property. The Subordinate Judge came to the conclusion that it was just and convenient that a receiver should be appointed to collect rent from tenants and by the same order fixed a later date for the appointment of the receiver.
It is against that order that the present appeal has been filed. A preliminary objection has been taken on behalf of the Respondent that no appeal lies against the present order. In our opinion there is Substance in the preliminary objection raised by the Respondent and the appeal is premature. There is some conflict between various High Courts on this question and it is therefore necessary to refer to certain provisions of the Code of Civil Procedure and the decisions of the various High Courts on this point. Order 40, Rule 1, Code of Civil Procedure provides as follows:

1. (1) Where it appeal s to the Court to be just and, convenient, the Court may by 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 realisation, management, protection, preservation & improvement of the property, the collection of the rents and profits thereof, the application & 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.

(2) Nothing in this rule shall authorise 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.

Order 43, Rule 1(s) is as follows:

An appeal shall lie from an order under Rule 1 or Rule 4 of Order 40.

The question therefore to be considered is whether the order appealed against can be said to be an order under Order 40, Rule 1 of the Code of Civil Procedure. It is admitted that this is not an order under Order 40, Rule 4. We have therefore to see whether the operative portion of the order comes under Order 40, Rule 1. The operative portion of the order is in the following terms:

In the circumstances, I consider it just and convenient that a receiver should be appointed till the disposal of this suit to collect rent from Defendants 2 to 7 in respect of the houses in suit and for their due preservation. The present application of the Plaintiff under Order 40, Rule 1 of the Code of Civil Procedure for appointment of an ad -interim receiver is therefore, allowed without costs in the circumstances of the case. Fix. 23 -12 -57 for nominating and appointing a receiver.

Therefore on a reading of this order it is clear that it was an order proposing that a receiver should be appointed. No appointment of a receiver has been made by this order. The expressions "a receiver should be appointed" and "fix 23 -12 -57 for nominating and appointing a receiver" are significant. They suggest that the Sub -Judge had come to the conclusion that it was just and convenient to appoint a receiver but no actual appointment has been made by this order.

Order 40, Rule 1, Code of Civil Procedure which we have already quoted, empowers the court to appoint a receiver. Unless an order appointing a receiver is made under Order 40, Rule 1, it cannot be said to be an order under Order 40, Rule 1, subject to an appeal under Order 43, Rule 1(a). It was strongly contended by the Counsel for the Appellant that in order to decide that a particular order comes under Order 40, Rule 1, various circumstances have got to be taken into consideration.

Firstly the application itself was made asking the court to pass an order under Order 40, Rule 1 and if on that application the court passes an order and allows the application, it is an order under Order 40, Rule 1. Secondly it was emphasised that the most important question which a court has to decide in disposing of applications under Order 40, Rule 1, is to see whether it is just and convenient to appoint a receiver and if the court; after a consideration of the circumstances comes to the conclusion that it is just and convenient to appoint a receiver, it is an order under Order 40, Rule 1.

Thirdly it was contended that the words used, under Order 40, Rule 1 are to appoint a receiver. It does not mean to nominate a particular person who is to act as a receiver and the order by which it has been decided that a receiver is to be appointed is an order appointing a receiver, though no particular person has as yet been nominated. Lastly it was contended by the Counsel for the Appellant that there is no other provision in the Code of Civil Procedure which authorises the passing of such an order and if there is no other provision, for such an order the order will necessarily be one under Order 40, Rule 1, Code of Civil Procedure.

As an analogy reliance was placed on the cases where it has been held that an order rejecting an application for appointment of a receiver is an order under Order 40, Rule 1. From tins it is argued that any order passed on an application for appointment of a receiver is an order under Order 40, Rule 1. It will be necessary to refer to some of the cases of various High Courts on this point.

On an analysis it will appear that the High Courts of Allahabad, Calcutta and Bombay and Nagpur have, taken the view that no appeal lies against an order by which it is found that it is just and convenient to appoint a receiver and only (sic) order has been passed to that (sic) and no actual appointment has been made. On the contrary the High Courts of Patna, Lahore and Madras have taken a contrary view.

In the case of Upendra Nath v. Bhupendra Nath reported in, 13 CLJ 157 (A), it was held by the Calcutta High Court that a final and not an interlocutory High Court that a final and not an interlocutory order appointing a receiver is appealable under Order 43, Rule 1, Clause (s) of the Code of Civil Procedure. The present order on the face of it is only an interlocutory order holding that it is just and convenient to appoint a receiver and it cannot be said to be a final order.

The next case on the point is the case of Kshitish Chandra v. Janaki Nath Roy reported in : 35 CWN 1141 : AIR 1932 Cal 194 (B). In this case a similar view has been taken. In the case of Narbadashankar Mugatram Vyas v. Kevaldas Raghunathdas reported in : AIR 1915 Bom 41 (C), it was held that an order merely directing that a proper person should be appointed a Receiver, is not appealable under Order 43, Rule 1 Clause (s). The case of the Calcutta High Court reported in, 13 CLJ 157 (A), was followed. At page 42 of the report it was observed as follows:

General considerations have been referred to. They perhaps are not of any special importance here where we have to consider certain definite words, but it does seem to me that general considerations are against multiplying appeals; are against allowing an appeal, first from an order such as this, and then from a later order actually appointing a Receiver. So it appears to me that the right course to take is to deal simply with the words of the Code. These words are 'appoint a Receiver'.

In the case of Muhammad Askari v. Nisar Husain reported in : ILR 42 All 227 : AIR 1920 All 149 (D), it was held by the Allahabad High Court that an appeal lies only from an order actually appointing a receiver, and not from an order by which the court expresses an intention to appoint a receiver and calls upon the plaintiff to suggest names with particulars regarding security, remuneration, etc.

The earlier case of the same Court reported in Ramjee v. Koman Das, 13 All LJ 79 :, AIR 1915 All 129 (1) (E), was followed. Interpreting Order 40, Rule 1 and Order 43, Rule 1(s) it was held that on the reading of the words in Order 40, Rule 1 it was clear that a final order appointing a receiver could only be contemplated by Order 40, Rule 1 and any interlocutory order not covered by the language of Order 40, Rule 1.

The same view is taken by the Nagpur High Court in the case of Gopalrao v. Devidas reported in : AIR 1938 Nag 540(F). The contrary view however has been taken by a Full Bench of the Madras High Court in the case of Palaniappa Chetty v. Palaniappa Chetty reported in, ILR 40 Mad 18 :, AIR 1918 Mad 1146 (G). In view of the Bench feeling some doubt about the earlier decision of their Court the matter was referred to a Full Bench and the Bench decided by two Judges being of the view that an appeal lies and a dissenting judgment was given by the third Judge.

The reasoning of the Majority Judges is that before an orders for appointment, of a receiver can be passed, the court has got to be satisfied that it is just and convenient to do it and if that satisfaction is expressed in the order then such an order can be an order under Order 40, Rule 1. The other reasoning of the majority Judges is that the order proposing that a receiver should be appointed is an order appointing a receiver.

As we have already indicated that on the plain language of Order 40, Rule 1 it is clear that what is contemplated by Order 40, Rule 1 is appointment of a receiver and not only an interlocutory order proposing to appoint a receiver. It is also significant to note that if it is held that Order 40, Rule 1 contemplates, two distinct stages one expressing an opinion that a receiver, should be appointed, and the other appointing any particular person as a receiver then it will lead, to multiplicity of appeals.

The person, may come up in appeal to this Court against the order by which it is expressed that a receiver should be appointed and after if receiver had been appointed, he will have another right to come up to appeal to this Court against the subsequent order. In interpreting a statute an interpretation should be avoided which might lead to multiplicity of proceedings.

It is also significant to note that Order 40, Rule 1 has laid down various kinds of orders which can be passed by a court and if it is held that the Court has also got a right to pass an order proposing the appointment of a receiver on the finding that it is just and convenient, it will be adding to the list of the orders which a court can pass under Order 40, Rule 1, and it will be introducing certain words in Order 40, Rule 1. Such an interpretation which has the, effect o adding certain words and Clause to an enactment should be avoided. The Lahore and Patna High Courts have both followed, ILR 40 Mad 18 :, All 1918 Mad 1146 (FB) (G), (ibid) with which we do not agree and it is necessary to expressly deal with those cases. We are inclined to accept the view expressed by the Calcutta, Bombay and Allahabad High Courts and in our opinion the appeal is premature.

H. Deka, J.

(2.)I agree.


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