Desai, C.J. - (1.) This is a preliminary objection to the maintainability of this appeal on the ground that the order dated 10-5-1962 is an incomplete or interlocutory order, that the final order was passed on 7-12-1952 when possession was ordered to be delivered to the three receivers after they had furnished the required security and that the receiver Sri Mahmud Ullah Khan appointed under the order dated 10-5-62 was replaced by another receiver, Sri Hafiz Ullah Ansari. An appeal lies under Order XLIII, Rule 1 (s) from an order passed under Order 40, Rule 1. If an order is an order passed under Order XL, Rule 1, an appeal lies and it is irrelevant to go into the question whether it is an incomplete order or interlocutory order or a final order. Security has to be furnished after an order appointing a person as a receiver has been made under Rule 1; this is made clear by Rule 3, which lays down that "every receiver so appointed shall (a) furnish such security" etc. It cannot be doubted for a moment that furnishing security has to follow the appointment of a person as a receiver and a person is appointed as a receiver when an order under Rule 1 is made. An appeal lies from an order made under Rule 1 and, therefore, as soon as an order under Rule 1 is made, an appeal can be filed from it even though the receiver has not furnished security. We cannot accept the contention that no appeal lies unless the receiver has furnished security as required by Rule 3. When the Legislature itself provides that security is to be furnished after an appealable order has been passed, it is not open to any Court to say that no appeal can be filed even though an appealable order has been passed until security has been furnished, to say so would be a refusal to follow the law or importing words to render an absolute right of appeal into a conditional right of appeal. We were referred to Upendra Nath v. Bhupendra Nath, 9 Ind Cas 582 (1) (Cal) and Srinivas Prosad Singh v. Kesho Prosad Singh, 12 Ind Cas 745 (Cal), in which it was held by the Calcutta High Court that an order appointing a receiver is an interlocutory order and that a final order is passed when the receiver furnishes security. Neither Order XI nor Order XLIII deals with final or interlocutory orders or distinguishes between them. As a matter of fact. Order 43 allows appeals mainly from interlocutory orders and when it allows appeals from interlocutory orders, a further division of interlocutory order into two classes seems to be without any justification. With great respect we are unable to accept the view taken by the High Court of Calcutta.. The view that is taken by us is supported by Palaniappa Chetty v. Palaniappa Chetty, ILR 40 Mad 18 : (AIR 1918 Mad 1146) and Nrisingha Charan Nandy v. Rajniti Prasad Singh, AIR 1932 Pat 360. An order contemplated by Rule 1 is an order appointing a receiver of property. When the Court finds it to be just and convenient, it by order appoints a receiver. Every order of appointment of receiver, therefore, includes a finding that it is just and convenient to appoint a receiver, thereby creating an office of receiver and a direction nominating a certain person to fill the office of receiver so created. Actually the order appointing a receiver has to follow the finding that it is just and convenient to appoint a receiver. This is clear from the words used in Rule 1 "where it appears to the Court to be just and convenient, the Court may by order (a) appoint a receiver", which mean that appointing a person as a receiver is the order to be passed under Rule 1; deciding that it is just and convenient is only a finding on which the order is to be based. An appeal is provided by Order 43, Rule 1 (s) from an "order" made under Rule 1 of Order 40, that is from the order or direction appointing a certain person as a receiver and not from the finding that it is just and convenient to appoint a receiver or creating an office of receiver. Here this order was passed on 10-5-1962; that was the order by which three persons were appointed as receivers. On 27-4-1962 the Trial Court had only given the finding that it was just and convenient to appoint a receiver or receivers, i.e., creating an office or offices of receiver or receivers. The order passed by the Trial Court on 10-5-1962 was, therefore, an order made under Rule 1 of Order 40 and was appealable.
(2.) One of the three receivers appointed on 10-5-1962, namely Sri Mahmud Ullah Khan, refused to give security and the Trial Court thereupon set aside the order appointing him as a receiver and appointed Sri Hafiz Ullah Ansari in his place on 3-12-1962. Sri Hafiz Ullah Ansari and the other two receivers furnished security and on 7-12-1962 the Trial Court passed an order that possession should be delivered to them. This order of 7-12-1962 was not an order contemplated by Rule 1 because firstly, it was not an order appointing a receiver, they having been already appointed by the orders dated 10-5-1982 and 3-12-1962; secondly. It was an order putting the receivers into possession and thirdly, it was an order passed after an order passed by the Trial Court under Rule 3 which had to follow and could not precede or even be simultaneous with an order under. Rule 1. It, therefore, could not be contended that the Trial , Court passed an appealable order in respect of receivership on 7-12-1962 and not on an earlier date.
(3.) We are also not impressed with the argument that even if this appeal is allowed, the appointment of Sri Mahmud Ullah Khan will be set aside and not the appointment of Sri Hafiz Ullah Ansari, which was ordered on 3-12-1962 and 7-12-1962 after the order under appeal had been passed. Sri Hafiz Ullah Ansari was appointed in a vacancy created by the removal of Sri Mahmud Ullah Khan on account of his failure to furnish the security demanded from him. As we said earlier the Trial Court decided to create tnree offices of receivers and filled them with Sri Mohammad Bashir, Sri Manzur Ahmad Shah and Sri Mahmud Ullah Khan. One office was vacated on the removal of Sri Mahmud Ullah Khan and Sri Hafiz Ullah Khan was appointed in that vacancy. If the order dated 10-5-1962 creating three offices of receivers and appointing three persons to fill them itself is set aside in this appeal, there would remain no office which could be filled by Sri Hafiz Ullah Ansari and his appointment will automatically come to an end. !n any case, it would be open to this Court, if it allows this appeal, to pass a consequential order that the appointment of Sri Hafiz Ullah Ansari by a subsequent order stands cancelled. If this Court by allowing the appeal sets aside the order of appointing a receiver or receivers, the order appointing Sri Hafiz Ullah Ansari cannot stand and it will be within the jurisdiction of this Court to cancel it. It is therefore, not correct that no order that this Court would pass while allowing the appeal will have any effect on Sri Hafiz Ullah Ansari's continuing as a receiver. The appeal is directed against the finding that it is just and convenient to appoint a receiver and against the orders creating three offices of receivers and appointing persons to fill them and must be deemed to include challenging the appointment of Sri Hafiz Ullah Ansari as a receiver to fill one of the offices. In the result we overrule this preliminary objection. KATJU, J.;