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Salemahomed Haji Haroon Kably Vs. Mahomed Taher Jaffrani - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 31 of 1957
Judge
Reported inAIR1958Bom210; (1957)59BOMLR1193; ILR1958Bom306
ActsCode of Civil Procedure (CPC), 1908 - Sections 10
AppellantSalemahomed Haji Haroon Kably
RespondentMahomed Taher Jaffrani
Appellant AdvocateS.V. Gupte, Adv.
Respondent AdvocateM.J. Mistree, Adv.
Excerpt:
.....refusing to appoint a receiver is not a judgment within the meaning of clause 15 of the letters patent, and, therefore, no appeal lies from such an order. the justices of the peace for calcutta v. the oriental gas company (1872) 65 beng. l.r. 433 and vanikhand v. lakhmichand (1919) 12 bom l.r. 955 applied.;a.r.a arumugam, chettyar v. v.k.s.k.n.m. kanappa, chettyar (1927) i.l.r. 5 bom. 99 sadiq ali v. anwar ali (1922) i.l.r. 45 all. 66, 71-72 miya mahomed v. zorabi (1909) 11 bom. l.r. 241 and jivanlal narsi v pirojshaw vakharia & co. (1932) i.l.r. 57 bom. 364 : s.c. 35 bom. l.r. 15 referred to. - - in our opinion that case applies with equal force to a case where a receiver has been refused- it may well be that where a receiver is appointed, the order may be a 'judgment' because..........order is appealable under the civil procedure code, it is held to be a judgment for the purpose or right of appeal under the letters patent. (see arumugam chettyar v. kanappa chettyar ilr 5 rang 99: air 1927 rang 139 and sadiq ali v. anwar ali ilr 45 all 66 : air 1923 all 44. this view, however, has never prevailed with this court; and there arc cases where an order is not appealable under the civil procedure code it has been held to be appealable, if made on the original side of the high court, under the letters patent and vice versa. we must, therefore, proceed to apply the ratio laid down by chief justice couch in the calcutta case which this court has always applied for determining what is a judgment.4. mr. gupte for the appellant has drawn our attention to certain cases: and the.....
Judgment:

Tendolkar, J.

1. This is an appeal against a judgment and order of Coyajee J., on a notice of motion whereby he refused to appoint a Receiver of certain property. The defendant is the son of the plaintiff and the shares of the plaintiff and the defendant in the said property are 4 annas and 12 annas respectively. It is alleged that there are two existing mortgages for Rs. 15,000/- and Rs. 35,000/- on this property. The plaintiff says that these mortgages are bogus and the only person who can file a suit to set aside the mortgages, according to the plaintiff, is a Receiver if appointed of the said property and it is mainly in the ground that these mortgages ought to be set aside that an appointment of a Receiver was applied for. The learned Judge, although he came to the conclusion that there were circumstances in which the mortgages appeared to be suspicious, refused to appoint a Receiver but made an order for deposit of certain money per month for the share of the plaintiff in the income of the said property. It is against the order refusing the Receiver that the present appeal has been filed.

2. A preliminary objection has been raised as to the maintainability of the appeal. Now, it is clear that so far as this High Court is concerned, it has always adopted the definition of the word 'judgment' given by Couch C. J., in the Justices of the Peace v. Oriental Gas Co. 8 Beng LR 433 , as a guide in determining whether there is a judgment within the meaning of Clause 15 of the Letters Patent against which an appeal lies, and the definition is :

'We think that 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability'.

Therefore, the essence of the matter is to determine whether the order refusing a Receiver determines some right or liability between the parties.

3. Now, it appears that the Rangoon and Allahabad High Courts have adopted a rule of practice whereby if an order is appealable under the Civil Procedure Code, it is held to be a judgment for the purpose or right of appeal under the Letters Patent. (See Arumugam Chettyar v. Kanappa Chettyar ILR 5 Rang 99: AIR 1927 Rang 139 and Sadiq Ali v. Anwar Ali ILR 45 All 66 : AIR 1923 All 44. This view, however, has never prevailed with this Court; and there arc cases where an order is not appealable under the Civil Procedure Code it has been held to be appealable, if made on the Original Side of the High Court, under the Letters Patent and vice versa. We must, therefore, proceed to apply the ratio laid down by Chief Justice Couch in the Calcutta Case which this Court has always applied for determining what is a judgment.

4. Mr. Gupte for the appellant has drawn our attention to certain cases: and the earliest of them is a decision in Miya Mahomed Haji Jan Mahomed v. Zorabi 11 Bom LR 241, in which a Division Bench of this Court held that an order directing the issue of a commission for the examination of witnesses is not a 'judgment' within the meaning of Clause 15 of the Letters Patent and no appeal lies. In delivering judgment Scott C. J., cites a passage from the observations of Sir Richard Couch in Hadjee Ismail Hadjee Hubeeb v. Hadjee Mahomed Hadjee Joosub 13 Beng LR 91 to the effect :

'It was held by the High Court at Madras in De Souza v. Coles 3 Mad HCR 384 , that an order made under this clause of the Charter was subject to appeal. We may not agree in all the reasons which the learned Judges of that Court gave for their decision, but we do agree in the conclusion that this is an appealable order. It is of great importance to the parties. It is not a merer formal order, or an order merely regulating the procedure in the suit, but one that has the effect-of giving a jurisdiction to the Court which it otherwise would not have. And it may fairly be said to determine some right between them viz the right to sua in a particular Court, and to compel the defendants who are not within its jurisdiction to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence.'

Mr. Gupte relies on the words 'It is of great importance to the parties' as if they were the ratiq of the decision of the case. But obviously the passage must be read as a whole and it is quite clear that the deciding factor was what the learned Judge states in terms to be that 'it may fairly be said to determine some right between the parties'. Now, with respect to the learned Judge he could not possibly have wanted to lay down that if an order made is of great importance it becomes a judgment, and,_ therefore, is appealable, because one, can conceive of numerous orders which may not be judgments, but undoubtedly are of great importance to the parties. This passage, therefore, does not, in our opinion, depart from the principle laid down in Justices of the Peace for Calcutta v. Oriental Gas Co. (A) that there must be a right determined between the parties.

5. Mr. Gupte also drew our attention to a case reported in Jivan Lal Narsi v. Pirojshaw R. Vakharia & Co. : AIR1933Bom85 . In that case a Division Bench of this Court held that a decision under S. 10 off the Civil Procedure Code determines the right of a plaintiff to sue in the Bombay High Court-A decree on such a decision is a 'judgment'' within the meaning of Clause 15 of the Letters Patent; and in the judgment of Blackwell J., the passage from the judgment in Hadjee Ismail! Hadjre Hubbeeb v. Hadjee Mahomed Hadjee Joosub (E) is set out. But the learned Judge does not reproduce the whole passage which was reproduced in 11 Bom LR 241 but reproduces only upto the point when the learned Judge refers to the fact that it may fairly be said that aright had been determined between the parties. Mr. Gupte, therefore, argues that the learned Judge in any event appears to have emphasised in that judgment the statement that the 'order is of great importance to the parties' as the ratio of the decision. With respect we cannot sharf this view, and as we have already pointed out the true ratio of the judgment of Chief Justice Couch in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub (E) was that thore was a determination of a right between the parties.

6. Then Mr. Gupte argues that a party, seeking arm ointment of a Receiver has a right to have the property safeguarded; and where a Receiver is not appointed and the order refused, his right to have the property safeguarded isthereby affected. Now, in the first instance it is rather a difficult thing to talk of a party's right to have the property safeguarded, for Order 40, Rule 1 which deals with the appointment of Receiver confers a discretion on the Court to appoint a Receiver where it appears to the Court to be just and convenient. Therefore, prima facie at any rate it does appear that it would be wrong to consider the right to apply for a Receiver as a right to have the property safeguarded. Undoubtedly the party has a right to apply to the Court for a Receiver but he has no right of obtaining a Receiver which alone can safeguard the property. But, in any event the refusal to appoint a Receiver appears to us to stand on the same footing as a refusal to grant an injunction so far as it affects any alleged right of the party; and there is a decision of this Court in which it has been held that an order refusing an injunction is not a judgment for the purpose of Clause 15 of the Letters Patent. That is the decision in Vanichand Rajpal v. Lakhmichand Maneckchand, 21 Bom LR 955: AIR 1920 Bom 309. There the Court had refused to restrain the defendant by an order and injunction from prosecuting his suit in a foreign Court and this order was held not to be a 'judgment' within the meaning of Clause 15 of the Letters Patent. Justice Heaton in his judgment also drew attention to the fact that the Court had jurisdiction to grant or refuse an injunction and refusal of an injunction could not be said to be a deprivation of any right of the parties. In our opinion that case applies with equal force to a case where a Receiver has been refused- It may well be that where a Receiver is appointed, the order may be a 'judgment' because it may deprive some party of his present right to possession; but that is not the case With which we are concerned in this appeal. Where a Receiver is refused, it appears to us that no right of a party is thereby determined, and therefore there is no judgment within the meaning of Clause 15 of the Letters Patent and no appeal lies.

7. The preliminary objection must, therefore, succeed. The appeal, therefore, fails and will be dismissed with costs.

8. Liberty to the Respondent's attorneys to withdraw the sum of Rs. 500/- deposited in Court.

9. Appeal dismissed.


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