1. This is an appeal from an order made by the Subordinate. Judge refusing to appoint a Receiver. A preliminary objection has been taken by Mr. Bhide on behalf of the respondent that no appeal lies.
2. Provisions for the appointment of Receivers are contained in Order XL of the Code, Rule 1, of that Order providing that the Court, when it considers it just and expedient to do so, may appoint a Receiver, remove any person from the possession of property, commit the property to the possession of a Receiver and confer upon the Receiver various powers there described. Order XLIII of the Code provides for appeals from orders, and it is admitted that a right of appeal, if it exists, must be given by the Statute or by some similar authority : Meenakshi Naidoo v. Subramaniya Sastri Clause (s) of Rule 1 of Order XLIII provides that an appeal shall lie from an order under Rule 1 of Order XL. The question, therefore, is, whether an order refusing to appoint a Receiver is an order made under Rule 1 of Order XL.
3. Mr. Bhide contends that inasmuch as it is an order not granting, but refusing, the prayer for a Receiver, it does not fall under Rule 1 of Order XL. In support of his contention he calls attention to the difference of phraseology employed, on the one hand, in Clause (s) of Order XLIII, Rule 1, and, on the other hand, in Clauses (j), (l) and (m) of that rule. The argument is that these last mentioned clauses indicate that when the Legislature intended to give an appeal from an order merely refusing an application, that intention was expressed in plain terms, and that no such expression is to be found in Clause (s). It seems to me that it would be dangerous to conjecture the expressions of the Legislature upon such a refined and subtle argument as this, seeing that, as has been more than once observed, the clauses of this order or the corresponding provisions in the Code of 1882 have not been drawn with absolutely mathematical precision. Moreover, it is possible to retort the argument by observing that Clauses (j), (l), (m) and (n) of Order XLIII, Rule 1, indicate at least that in the mind of the Legislature an order refusing an application made under a certain rule is as much an order under that rule as would be an order granting the application. But I do not think that we are under the necessity of basing our decision upon these rather remote considerations. The point, which is now taken, was taken under the corresponding provision, that is, Section 588 of the Code of 1882, and led at first to some difference of judicial opinion. Ultimately a Full Bench decision of the Madras High Court in the case of Venkatasami v. Stridavamma I.L.R. (1886) 10 Mad. 179 placed upon Section 588 the construction favouring the admission of an appeal in such cases. That view was adopted and followed by this Court in the case of Sangappa v. Shivbasawa I.L.R. (1899) 24 Bom. 38 and by the Calcutta High Court in the case of Boidya Nath Adya v. Makhan Lal Adya I.L.R. (1890) Cal. 680 and Khagendra Narain Singh v. Shashadhar Jha I.L.R. (1904) Cal. 495. There was apparently no specific decision in Allahabad, so that we may say that under the Code of 1882 the Indian High Courts were unanimous in reading the provisions of the Code as allowing an appeal from such an order as we have now before us. Now the provisions of the old Code upon this matter have been re-enacted without substantial variation in Order XLIII, Rule 1, of the present Code and since the Legislature has introduced no verbal change of importance, it must, I think, be inferred that the previous decisions of the Indian Courts, which I have noticed, have since received legislative sanction or approval.
4. That being so, I am of opinion that we must hold that this appeal is competent under Order XLIII, Rule 1, Clause (s).
5. I may notice that the case of Narbadashankar v. Kevaldas(1) was cited as being in the respondents' favour, but I am not able to understand how that decision has any bearing at all upon the point before us. [His Lordship then dealt with the appeal on merits, and reversed the order passed by the Subordinate Judge.]