Kutoor Vengayil Rayarappen Nayanar of Kullon Vengayil Tarwad vs Kutoor Vengayil Valiyu Madhavi Amma and Others

Horwill, J.—In this application for leave to appeal to the Federal Court against the order of this Court Kuteer Vengayil Rayarappan

Nayanar, Karnavan of Kuteer Vengayil Tarwad Vs. Kuteer Vengayil Valiya Madhavi Amma and Others, dismissing as not maintainable an appeal

against the order of the Subordinate Judge of Tellicherry removing the petitioner from receivership and appointing two others, it has been argued

that the petitioner has the right to appeal either u/s 109(a) or Section 109(c), Civil Procedure Code.

As for the first contention that the order passed by us was a final order, it is sufficient to state that a final order contemplated u/s 109 (a) must be

one which affects finally the rights of parties. An order removing or appointing a receiver does not affect at all the rights of the parties; it is merely

an order making provision for the due preservation of the estate during the pendency of the suit. This is such a well-recognised principle of law that

authority for this proposition should hardly be necessary. We therefore content ourselves with referring to Rajnithi v. Nrisingha ILR (1933) Pat.

723 in which after a full discussion of the various decisions it was held that an order appointing or removing a receiver was not a final order.

If the order is not a final order then an appeal will lie to the Federal Court only if in the words of Section 109 (c), Civil Procedure Code, it can

be "" certified to be a fit one for appeal."" This sub-section is no doubt very widely expressed; and it might not be easy in the absence of authority to

say whether a case was a fit one for hearing by the Federal Court or not; but it is clear that leave to appeal to the Federal Court should not be

granted unless the question raised is a matter of considerable importance. The propriety of granting a certificate under this sub-section was

considered by their Lordships of the Privy Council in Benoy Krishna Mukherjee v. Satish Chandra Giri (1997) 54 M.L.J. 423 : L.R. 55 IndAp

131 : ILR 55 Cal. 720 where they remarked,

They think it right to add that, as a general rule and in the absence of special circumstances or some unusual occasion for its exercise, the power of

making interlocutory orders is one which is not a suitable subject for review by the Judicial Committee.

It is no doubt true that the question decided by us is one of jurisdiction; but the matter is not here of any great importance, nor can the question

whether one person or another should be appointed as receiver ordinarily be of any great practical importance. We do not therefore consider that

this is a fit case for the granting of a certificate for appeal to the Federal Court. We are fortified in our conclusion by the remarks of the learned

Judges in Mahomed Musaji v. Ahmed Musaji (1911) 13 C.L.J. 507, where they said, in considering a similar application,

We are however not concerned with the propriety or otherwise of the order against which leave is sought; it is sufficient to say that no special

question arises, such as would justify an order under Clause (c) of Section 109 of the Code or u/s 40 of the Letters Patent.

The petition is dismissed with costs.