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Judgment
Horwill, J.—The appellant was appointed a receiver in O. S. No. 28 of 1945. Upon a petition by some of the parties to the suit, who made
certain allegations of maladministration, the appellant was removed from his receivership by the Subordinate Judge of Tellicherry and two others
were appointed in his stead. A preliminary point argued in the appeal is whether the appeal is maintainable.
We have no doubt that the law in most High Courts, including this High Court, is that no appeal lies against an order removing a receiver. The
matter came up directly for decision in C. M. A. No. 278 of 1914 before a Bench of this Court; and it was held that in the absence of any special
provision in the Code for an appeal against an order removing a receiver, no appeal would lie. The learned Judges purported to follow
Ramaswami Naidu and Others (minors) by next friend Lakshmi Ammal Vs. Ayyalu Naidu, , although the question that came up for decision in that
appeal was whether any appeal lay against an order refusing to remove a receiver. If an order removing a receiver were appealable, then an order
refusing to remove a receiver would also be appealable and vice versa. Even if this matter were res integra, we should be of opinion that no appeal
lies against the order removing a receiver; for Section 104, Civil P. C., begins by saying : ""An appeal shall lie from the following orders and . . . . .
from no other orders"" This seems to us to make it clear that unless an appeal is specially provided for in the Code, no appeal will lie against any
order.
The learned Sripati Dutta and Others Vs. Bibhuti Bhusan Dutta and Others, and Abdul Kadar v. R. M. P. Chettiar Firm, A. I. R. 1938 Rang.
387 : 1938 Rang. L. R. 586, in which it was held that an order removing a receiver was appealable. In both these oases, the learned Judges relied
on the provisions of Section 16, General Clauses Act, which runs :
Where . . . a power to make an appointment is conferred then . . . . the authority having the power to make the appointment shall also have power
to suspend or dismiss any person in exercise of that power.
We are unable to see how it can be argued from this section that an appeal would lie against an order removing a receiver. This provision can be
relied on to show that a Court appointing a receiver has also power to remove him; but it would not follow that because the Court had power to
remove a receiver that the order removing him was appealable. It seems to us that the reasoning of the learned Judges in this case runs counter to
the express provisions of Section 104, Civil P. C., just quoted. In another Calcutta case, Mano Mohan Neogy Vs. Surendra Kumar Ray
Chowdhury and Others, , Sripati Dutta and Others Vs. Bibhuti Bhusan Dutta and Others, was followed; but the opinion there expressed wag
obiter, since the learned Judges went on to say that no appeal lay at the instance of a receiver who was not a party to the suit. These Calcutta
decisions overlooked the earlier decisions of the Calcutta High Court such as, Eastern Mortgage and Agency Co., Ltd. v. Premanda Saha, 20 C.
W. n. 789 : AIR 1916 Cal. 824 and Sahebjada Faridun v. Fakir Muhammad, 24 I. C. 862 : A. I. R. 1914 cal. 786, which were followed in
Ramaswami Naidu and Others (minors) by next friend Lakshmi Ammal Vs. Ayyalu Naidu, . That the opinion of the Allahabad and Patna High
Courts is the same as in Madras can be seen from (Major) Anthony Ullyssess John and Others Vs. Agra United Mills Ltd. and Another and
Surendra Nath Sarkar Vs. Nagar Chand Goenka and Another, . In the former case, the learned Judge who delivered the judgment of the Bench
said :
The appellants rely upon a decision of the Calcutta High Court in Sripati Dutta and Others Vs. Bibhuti Bhusan Dutta and Others, . This decision
undoubtedly favours the contention of the appellants. We regret, however, that we cannot follow it. This decision proceeds upon the ground that
u/s 16, General Clauses Act (Act X [10] of 1897) the power to appoint includes the power to remove or dismiss and that therefore the right to
appeal from an order of appointment must be held to include the right of appeal from an order of dismissal. We cannot follow this reasoning and
we do not see what the principle underlying Section 16, General Clauses Act has to do with the right of appeal. Where a right of appeal has to be
expressly conferred by statute it cannot be presumed to exist by recourse to a rule of analogy or a rule of logic.
With these remarks we respectfully agree. (Major) Anthony Ullyssess John and Others Vs. Agra United Mills Ltd. and Another was approved of
and followed in Surendranath v. Nayarchand A. I. R. 1947 Pat. 438 : 25 Pat. 779.
The only question that has given us some concern is whether the order complained of is appealable on the ground that the order of removal of
the appellant is coupled with an order appointing two fresh receivers. It is argued that since an order appointing the two receivers would be
appealable, then that same order, which incidentally removed the appellant from receivership, would be appealable on that ground also. In this
particular case, we find from a reference to the Memorandum of Appeal that it is not a ground of appeal that two other persons were appointed
receivers. The whole tenor of the grounds of appeal is that the appellant was wrongly removed. We do not wish to base our decision on this
narrow ground, as we are of opinion that the order of the learned Judge should be considered as two distinct orders : one removing the appellant
and the other appointing two new receivers. It would be indeed anomalous if the appellant, who has no right of appeal against the order of
dismissal, would be entitled to appeal merely because at the same time the Court thought it necessary to appoint other receivers to administer the
estate. Our attention has not been drawn to any case in which it has been held that the appointment of a successor gave a right to a dismissed
receiver to canvass the grounds for his dismissal.
This appeal being not maintainable, it is dismissed with costs.