Anil Sharma vs Rajan Pathak and Others

Tarun Agarwala, J.—An application was filed by the respondent No. 1 for appointment of a receiver under Order XL of the C.P.C. This application was allowed by an order dated 26.4.2008. The Civil Judge, while allowing the application, directed the parties to submit two names for the purpose of appointing a receiver. The petitioner, being aggrieved by the said order, filed a revision u/s 115 of the C.P.C. The said revision was dismissed as not maintainable. The petitioner, being aggrieved, has filed the present writ petition.

Heard Sri Shashi Nandan, the learned senior counsel assisted by Sri D. K. Tripathi, the learned Counsel for the petitioner and Sri Rahul Sahai, the learned Counsel appearing for respondent No. 1.

The learned senior counsel submitted that at the present moment, a receiver has not been appointed and only an application of the opposite party was allowed. Consequently, till such time, as a receiver was not appointed, no appeal u/s 43, Rule 1 (s) of the C.P.C. could be filed. In support of his submission, the learned Counsel for the petitioner placed reliance upon a Division Bench decision of this Court in Ram Babu Verma Vs. Om Prakash Verma and Others, wherein it was held that till such time as an order, appointing a particular person, as a receiver was not made by a Court, no appeal under Order XLIII, Rule 1 (s) was maintainable. The Court held that against an order recording a finding that it was just and convenient to appoint a receiver and creating an office of a receiver was not sufficient for filing an appeal under Order XLIII, Rule 1 (s) of the C.P.C.

In the light of the aforesaid judgment, the learned Counsel for the petitioner submitted that a revision u/s 115 of the C.P.C. was maintainable and was rightly filed by the petitioner, which was arbitrarily rejected by the revisional court, as not maintainable.

For convenience, the provision of Section 115 of the C.P.C, as applicable to U. P. is quoted hereunder:

Revision. --(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation.--In this Section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.

Upon hearing the learned Counsel for the petitioner and in view of the Division Bench decision of this Court in the case of Ram Babu Verma (supra) admittedly, a receiver has not been appointed as yet by the trial court and names have been invited from the parties. Consequently, no appeal is maintainable under Order XLIII, Rule 1 (s) against the order dated 26.4.2008.

The question is, whether a revision is maintainable u/s 115 of theC.P.C. or not?

From a perusal of the impugned order of the trial court, the application No. 12Ga for appointment of a receiver was allowed subject to certain conditions and one of the condition was, that the parties were directed to give the names of two persons for appointment of a receiver.

Consequently, this Court is of the opinion that the application No. 12Ga of the opposite party, has not been fully allowed as yet and is still subject to certain conditions. Consequently, the issue with regard to appointment of a receiver, has not been finally decided and does not come under the category of the Explanation provided u/s 115 of the C.P.C.

The impugned order is not a case which has been decided finally nor does the impugned order decide the issue finally. Final order would be passed when a receiver is appointed, against which, the petitioner has a remedy of filing an appeal under Order XLIII, Rule 1 (s) of the C.P.C

In view of the aforesaid, this Court is of the opinion that the court below has rightly rejected the revision, as not maintainable. The writ petition fails and is dismissed.