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Narasinga Gowda and anr. Vs. Subramanya Saralaya - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 370 of 1971
Judge
Reported inAIR1972Kant346; AIR1972Mys346; (1972)2MysLJ186
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 40. Rule 1 - Order 43, Rule 1
AppellantNarasinga Gowda and anr.
RespondentSubramanya Saralaya
Appellant AdvocateTukaram S. Pai, Adv.
Respondent AdvocateB.P. Holla, Adv.
DispositionPetition allowed
Excerpt:
..... - the receiver did not seek any interpretation of the order but he requested the court that the petitioners, being the highest bidders in the auction held by him (receiver) in pursuance of the direction of the order of appointment, should be put in possession of the property and any order passed on such a memo is not an interpretation of the order but an order passed on the memo filed by the receiver which clearly comes under rule 1 of order 40, civil p......by the plaintiff before the court of the civil judge in miscellaneous appeal no. 46 of 1969. the learned civil judge took the view that the property was covered by the order and therefore allowed the co-peal and directed the receiver to take possession of both the items mentioned in the plaint a schedule.2. before the lower appellate court it was contended by the defendants-petitioners that the appeal was not maintainable under order 43. rule 1. clause (s) of the code of civil procedure; the learned judge however took the view that the present case is covered by a decision of this court reported in iswara shastry v .ramakrishna shastry. ((1965) 1 mys lj 342). in that view the learned civil judge held that the appeal was competent and allowed the appeal on merits and set aside the order.....
Judgment:
ORDER

R.B. Datar, J.

1. Petitioners are the defendants in O. S No. 257 of 1968 on the file of the Munsiff at Buntwal, S. K. An application I. A. II was filed for temporary injunction by the plaintiff and that was granted. It appears that parties filed a joint memo on 6th March 1969 stating that without prejudice to the contentions by the parties a receiver may be appointed to look after the areca garden mentioned in the plaint A schedule and Sri N. B. Angraja may be appointed as the receiver. The terms were also stipulated therein that the receiver shall not lease the property to any one and he shall appoint a servant for the purpose of watering and looking after the areca garden. Provision was also made therein for the purpose of payment and maintenance expenses incurred by the receiver. On this memo, the trial Court appears to have passed an order appointing the receiver with regard to the property mentioned in the joint memo. The receiver took possession of two items of property. The question then arose with regard to the interpretation of the order passed in the joint memo as to whether the receiver has to take possession of another piece of land. Thereupon the receiver sought direction from the Court. Parties were heard on 16-10-1969 and the learned Munsiff took the view that the property which the plaintiff wanted the receiver to take possession was not covered by the order and therefore directed that the receiver should not take possession of the new garden mentioned by him in his report. It is this order passed by the learned Munsiff that was challenged by the plaintiff before the Court of the Civil Judge in Miscellaneous Appeal No. 46 of 1969. The learned Civil Judge took the view that the property was covered by the order and therefore allowed the co-peal and directed the receiver to take possession of both the items mentioned in the plaint A schedule.

2. Before the lower appellate Court it was contended by the defendants-petitioners that the appeal was not maintainable under Order 43. Rule 1. Clause (s) of the Code of Civil Procedure; the learned Judge however took the view that the present case is covered by a decision of this Court reported in Iswara Shastry v .Ramakrishna Shastry. ((1965) 1 Mys LJ 342). In that view the learned Civil Judge held that the appeal was competent and allowed the appeal on merits and set aside the order of the trial Court. It is the correctness of this order that is challenged in this revision petition.

3. Sri Tukaram S. Pai, learned counsel appearing for the petitioners contends that under the provisions of Order 43, Rule 1. Clause (s). Civil P. C. the present appeal is not maintainable and therefore, the lower appellate Court had no jurisdiction to entertain the appeal and so the order is liable to be set aside. Order 43, Rule 1. Clause (s), Civil P. C. states that an appeal lies from an order under Rule 1 or Rule 4 of Order XL. Order XL. Civil P. C. states that where it appears to the Court to be just and convenient the Court may by Order (a) appoint a receiver of any property, whether before or after decree; (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the receiver. We are not concerned with the other clauses or with Rule 4. It was therefore submitted by Sri Pai that in the present case the order is not passed under Clauses (b) (c) of Order XL, Rule 1. Civil P. C. as the appeal was not maintainable.

4. On the other hand. Sri B. P. Holla, learned counsel appearing for the respondents, contends that the present case falls under Clause (b) or (c) of Order 40. Rule 1, Civil P. C. and therefore, the appeal is maintainable. So the short question is whether the appeal filed before the Court of the Civil Judge was maintainable.

5. In Samhautta Singh v. Bhagwati Singh. (AIR 1920 Pat 703) it has been held that 'An order construing an order of appointment of a receiver does not fall either under Rule 1 or under Rule 4, Order 40 and is not appealable'. It has also been held that. 'Where an appellate Court entertains an appeal which it has no jurisdiction to entertain, its decision is liable to be set aside. So. if the Court in the present case was merely construing the earlier order, then an appeal would not be competent. In the present case an order of appointment of a receiver as also the property to which it should relate has already been passed. The Court was now resolving the dispute as to whether the new garden was covered by the order of appointment. In my view, in the present case, what the receiver by the memo sought was for a clarification or interpretation of the earlier order whether the joint memo and the Court order entitled the receiver to obtain possession of the property which the plaintiff desires. Since the order that is passed by the trial Court was only an order interpreting as to what was covered by the first order passed on the joint memo, in my view, the case does not fall into any one of the categories of order contemplated in Rule 1 of Order 40. Civil P. C. When the Court passes an order appointing a receiver, it has to give direction; if the order of appointment is in regard to obtaining and management of the property then the Court has to direct obtaining possession by removing any person from the possession or custody of the property or to commit the same to the possession, custody or management of the receiver. In the present case, when the joint memo was filed, the learned trial Judge appointed a receiver and directed taking of the possession and management as provided under Clauses (b) and (c) of Order XI, Rule 1. Civil P. C. Therefore, when that order has already been passed, then the question was as to whether certain property was covered by that order or not. The order passed cannot be said to be a fresh order directing removal of any person from the possession of the property but merely an interpretation of what was decided on the earlier application.

6. In (1965) 1 Mys LJ 342 referred to above, this is what Kalagate. J. has stated at page 346.

'On the other hand, the contention of Mr. Narayana Rao, for the, respondents is that the order is really an order interpreting the order of appointment of a receiver and therefore it is not appealable. But, this contention cannot be accepted. The receiver did not seek any interpretation of the order but he requested the Court that the petitioners, being the highest bidders in the auction held by him (receiver) in pursuance of the direction of the order of appointment, should be put in possession of the property and any order passed on such a memo is not an interpretation of the order but an order passed on the memo filed by the receiver which clearly comes under Rule 1 of Order 40, Civil P. C.

In view of the above observation of this Court, it is wrong for the lower Court to have thought that the matter is concluded by the decision of this Court. In that view, I hold that the appeal filed before the lower appellate Court was not maintainable and since it was not maintainable, as stated in AIR 1920 Pat 703 referred to earlier, the lower appellate Court had no jurisdiction to pass the order and therefore the order is liable to be set aside in revision.

7. The learned counsel for the respondent contended that this was- a just order and since it was just order it would not be proper for this Court to interfere with the same. In my view.

that contention is not available to the respondent in the present case. The receiver was 'not appointed' by the Court as a result of an investigation as to the propriety of the appointment in the present case. He was appointed by a joint memo and when the parties are not agreed as to what is covered by it if is not open for this Court to state that the order of the lower Court is just, and therefore, this Court should not interfere with the same. In my view, there was opportunity for the respondent to make his submission with regard to the interpretation and that submission was made and the learned Munsiff on consideration of the entire matter took the view that the additional property which the plaintiff wanted the receiver to take possession was not covered by the earlier order. I, therefore, see no special reason to hold that even though the order is without jurisdiction, I should not interfere with the order passed by the learned appellate Judge.

8. In the result, the revision petition is allowed, the order passed by the lower appellate Court is set aside and that of the trial Court is restored. Petitioner is entitled to the costs of this Court.


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