Prahlad Kumar vs Amar Kumar and Others

This is a petition for revision of the order of the Court of Shri Gurdial Singh, Senior Subordinate Judge, Bhatinda (exercising enhanced appellate powers), dated May 5, 1976, dismissing the appeal of the plaintiff-petitioner against the order of the trial Court, dated Nov. 5, 1974, permitting respondent No. 4 to file a suit against respondent No. 3, the Receiver appointed by the Court under O. 40, R. 1 of the Civil P. C. during the pendency of the Civil Suit between the parties.

In the suit for the dissolution of partnership and rendition of accounts filed by the plaintiff-petitioner respondent No. 3 was appointed the Receiver of the partnership property. On August 9, 1974 respondent No. 4 made an application to the trial Court for directing the Receiver to hand over to her the possession of certain movie film with its negative etc. That application was dismissed by the trial Court. Another application was filed by respondent No. 4 in the trial Court on July 18, 1974, for granting her permission to sue the Receiver appointed by the Court by impleading the Receiver as a defendant in the suit she proposed to file against the firm and its partners before the Bombay High Court on its original side. That application was allowed by the order of the trial Court, dated Nov. 5, 1974. It is against the above-mentioned order of the trial Court granting permission to respondent No. 4 to sue the Receiver that the appeal had been filed by the plaintiff before the learned Senior Subordinate Judge which has been dismissed as being not maintainable.

It is settled law that no appeal lies unless it is provided by statute. Shri Harbhagwan Singh, the learned senior counsel for the plaintiff--petitioner submits that the appeal before the lower appellate Court was maintainable under O. 43, R. 1(s) of the Code. The order against which an appeal lies under that provision is confined to "an order under R. 1 or R. 4 of O. XL." of the Code. Admittedly R. 4 of O. 40 has no application to the case. The submission of Shri Harbhagwan Singh is that the order of the trial Court, dated Nov. 5, 1974, had been passed under Cl.(b) of sub--rule (1) of R. 1 of O. 40 of the Code. That sub--rule authorises the Court to "remove any person from the possession or custody of the property." Admittedly the application of respondent No. 4 for removing the Receiver from the possession and custody of the property in dispute (the picture and its negative, etc.)was dismissed by the trial Court. The plaintiff-petitioner was aggrieved against that order. What counsel submits is that even the order, dated Nov. 5, 1974, passed by the trial Court is virtually for the same purpose inasmuch as the object of respondent No. 4 for filing the suit and appeal against the receiver is to deprive the Receiver of the possession and custody of property which has been vested in him, and of which possession has been taken by him as Receiver appointed by the Court under Cl.(a) of R. 1 of O. 40. I am unable to agree with the learned counsel in this behalf. Permitting a suit be filed has nothing to do with the object with which the suit is filed so far as the question of the order being appealable or not is concerned. It is the actual order of removal of any persons from possession or custody of the property by the Receiver that is appealable. I am doubtful if the order removing the Receiver from the possession or custody of the property would be appealable or not, but that is not the question that calls for decision in the present proceedings. This doubt has been created in me by the phraseology of Cl.(b) which refers only to the removal of ''any person'' from the possession and custody of the property which prima facie refers to the removal by the Receiver. Be that as it may, the permission granted to a third person for suing the Receiver for whatever purposes it may be, cannot amount to removing any person from the possession and custody of the property, even if ''any person'' in Cl.(b) of sub--rule (1) of R. 1 of O. 40 of the Code could include the Receiver within its ambit.

Mr. Harbhagwan Singh has relied on the judgment of Sodhi, j.(as he then was) in State of Gujarat and Another Vs. Acharya D. Pandey and Others, etc., . The question that came up for decision in that appeal was whether an appeal lay to this Court against the order of the District Judge refusing the enhanced compensation allowed to one of the heirs of the deceased for maintenance of her minor children during the course of pendency of a petition under S. 276 of the Indian Succession Act, 1925, for the grant of letters of administration in respect of the estate of the deceased. The preliminary objection against the maintainability of the appeal was repelled by the learned Judge on the ground that every order passed by the Court under the Succession Act was appealable under S. 299 of that Act to the High Court, and inasmuch as the order passed by the trial Court was obviously under Clause (d) of R. 1 of O. 40(direction to the Receiver), it was specifically appealable under O. 43, R. 1(s) of the Code. The order passed in the instant case by the learned Subordinate Judge on Nov. 5, 1974, admittedly does not amount to a direction issued to the Receiver, and does not fall under Cl.(d) of R. 1 of O. 40. The judgment of Sodhi, J. is, therefore, of no avail to the petitioner.

The only other case on which learned counsel for the petitioner has relied is the judgment of a learn single Judge of the Kerala High Court in Parvathi Chellamma and Another Vs. Hussan Pillai Mohammed Abdul Khader and Others, . An appeal against certain order had been entertained and allowed by the first appellate Court and the appellate order was set aside in revision by the High Court on merits, without going into the question of maintainability of the appeal, as no such objection was raised before the High Court. The judgment of the Kerala High Court does not, therefore, throw any light on the proposition before me.

On the other hand Mr. Harcharan Singh, learned counsel for respondent No. 4, has invited my attention to the judgment of a Division Bench of the Bombay High Court in Shriniwas Kuppuswami Mudliar Vs. M.C. Waz, , wherein it was specifically held that an order giving leave to sue a Receiver is not appealable under O. 43, R. 1 of the Code. The judgment of the Bombay High Court is on all fours with the case before me so far as the point in issue is concerned. For the reasons already recorded above I am in respectful agreement with the judgment of the Division Bench of the Bombay High Court in Shrinivas Kuppuswami Mudaliar''s case (supra). As a result of the above discussion I hold that the order of the trial Court, dated November 5, 1974, was not appealable under O. 43, R. 1(s) of the Code, and, therefore, the judgment and order of the lower appellate Court dismissing the appeal of the plaintiff-petitioner as not maintainable is correct, and cannot be interfered with.

This petition must, therefore, fail and is accordingly dismissed with costs.

Revision dismissed.