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Narbadashankar Mugatram Vyas Vs. Kevaldas Raghunathdas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeal No. 4 of 1915
Judge
Reported inAIR1915Bom41; (1915)17BOMLR510
AppellantNarbadashankar Mugatram Vyas
RespondentKevaldas Raghunathdas
DispositionAppeal dismissed
Excerpt:
.....code (act v of 1908), order xliii, rule 1, clause (5)-appeal from order-order creating office of receiver-receiver not appointed by name.;an appeal under order xliii, rule 1, clause (5), of the civil procedure code, does not lie from an order which provides that a proper person should be appointed a receiver. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as..........a receiver.' the receiver has not been appointed yet and it seems to me, therefore, that no order has yet been made under rule 1 of order xl, and that the order which has been made is not one of those orders subject to appeal.6. this appeal i think ought to be dismissed because no appeal lies, and i think the costs in these proceedings should be costs in the matter before the subordinate judge.shah, j.7. i agree.
Judgment:

Heaton, J.

1. In this case the plaintiff brought a suit in the Court of the Additional First Class Subordinate Judge at Ahmedabad and moved the Court to appoint a receiver. The Court heard the parties and made this order:-' I therefore hold that a proper person should be appointed a receiver. The parties will be further heard on the point as to who should be appointed a receiver.' Against this order the defendant in the suit has appealed.

2. His appeal is met by the preliminary objection that it does not lie. It does not lie certainly unless it comes under Clause (s) of Order XLIII of the Civil Procedure Code, which provides for an appeal against an order under Rule 1 or Rule 4 of Order XL. It is not pretended that this is an order under Rule 4 of Order XL, but it is maintained that it is an order under Rule 1. It can only be an order under Rule 1 if it fall within the terms of Clause (a) of the rule that the Court may appoint a receiver of any property.

3. It seems to me that the Court has not appointed a receiver. It has only decided that at some future date it will appoint a receiver, an order which no doubt it is quite competent to the Court to make under the power conferred on it by Section 94 of the Code. But the actual order to appoint a receiver, it seems to me, will be made only when the Judge actually nominates a person or an official and specifically appoints him to be the receiver in the case. This conclusion is entirely in accordance with the decision of a Bench of the Calcutta High Court in Upendra Nath Nag Chowdhry v. Bhupendra Nath Nag Chowdhry (1910) 13 CRI.L.J. 157.

4. Various arguments have been advanced in this case. Reference, for instance, has been made to the provisions of the old Code. I do not think that they really throw any light on the matter before us, for now the provisions of the law are materially different; nor do I think the decisions under the sections of the old Code help us in this matter.

5. General considerations have been referred to. They perhaps are not of any special importance here where we have to consider certain definite words, but it does seem to me that general considerations are against multiplying appeals; are against allowing an appeal, first from an order such as this, and then from a latter order actually appointing a receiver. So it appears to me that the right course to take is to deal simply with the words of the Code. These words are' appoint a receiver.' The receiver has not been appointed yet and it seems to me, therefore, that no order has yet been made under Rule 1 of Order XL, and that the order which has been made is not one of those orders subject to appeal.

6. This appeal I think ought to be dismissed because no appeal lies, and I think the costs in these proceedings should be costs in the matter before the Subordinate Judge.

Shah, J.

7. I agree.


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