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Virappa Mallappa Lali Vs. K.S. Deshpande - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 95 and 96 of 1961
Judge
Reported inAIR1963Mys173; ILR1962KAR445
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rules 3 and 4 - Order 43, Rule 1
AppellantVirappa Mallappa Lali
RespondentK.S. Deshpande
Advocates:B.V. Deshpande, Adv.
Excerpt:
.....is, i think incontestable, that in substance the applications were presented under rule 4 and the district judge took an extremely technical view in taking the view that they were presented under rule 3. 5. if this is the correct position, it becomes clear that under clause (s) of rule 1 of order xliii of the code of civil procedure the orders of the court of first instance were clearly appealable since that clause reads: whether any of the orders referred to in rule 4 is made or the court refuses to make such order, the order eventually made is one under rule 4 and is therefore clearly appealable, since it could not be said that an application under rule 4, if rejected, must be taken to have been rejected under some other rule and not under rule 4 of order xl. whether the application..........of first instance refused to make such order. the petitioner then presented two appeals to the district judge under the provisions of rule 1 (s) of order' xliii of the code of civil procedure. the district judge dismissed those appeals since in his opinion they were incompetent. it is with the correctness of this conclusion reached by the district judge that i am concerned in these two revision petitions.2. the relief which the petitioner wanted is stated in paragraph 10 of his application in each of these cases and that paragraph reads: -'it is therefore finally prayed that the receiver be directed to furnish proper, legal and adequate accounts of his management up to date, under rule 3, order 40, and secondly, that court should allow parties and the receiver and the commissioner.....
Judgment:
ORDER

A.R. Somnath Iyer, J.

1. These two revision petitions arise out of two applications presented by the petitioner under Rule 4 of Order XL of the Code of Civil Procedure in which he wanted an order for the recovery from the Receiver of the amount found to be due from him in respect of the loss occasioned by him. The Court of first instance refused to make such order. The petitioner then presented two appeals to the District Judge under the provisions of Rule 1 (s) of Order' XLIII of the Code of Civil Procedure. The District Judge dismissed those appeals since in his opinion they were incompetent. It is with the correctness of this conclusion reached by the District Judge that I am concerned in these two revision petitions.

2. The relief which the petitioner wanted is stated in paragraph 10 of his application in each of these cases and that paragraph reads: -

'It is therefore finally prayed that the Receiver be directed to furnish proper, legal and adequate accounts of his management up to date, under Rule 3, Order 40, and secondly, that Court should allow parties and the Receiver and the Commissioner proper inspection of the same and thereafter, if necessary, fix a date for hearing the objections of all sorts by any of the parties concerned and finally proceed to pass the accounts and fix the liability for any loss accrued or deemed to accrue from the default or negligence of the Receiver. Such procedure is clearly indicated to be the proper and appropriate one.'

3. Although in this paragraph the application of the petitioner specified Rule 3 of Order 40 as the rule under which he wanted the Court to make the order sought by him, it is clear that the rule stated by him was a misstatement for Rule 4, since Rule 3 only enumerates the duties of a Receiver and it is Rule 4 under which the Court could determine the liability of the Receiver in respect of the loss occasioned by him to the estate which was entrusted to him for management.

4. The District Court took the view that the application made by the petitioner was one made under Rule 3 and not Rule 4 and that therefore the orders made by the Court of first instance dismissing the petitioner's applications were not appealable. It is clear that unless it is possible to find that the applications were presented under Rule 4 and not under Rule 3, no complaint could be made against that view taken by the District Judge. But it is, I think incontestable, that in substance the applications were presented under Rule 4 and the District Judge took an extremely technical view in taking the view that they were presented under Rule 3.

5. If this is the correct position, it becomes clear that under Clause (s) of Rule 1 of Order XLIII of the Code of Civil Procedure the orders of the Court of first instance were clearly appealable since that clause reads: -

'1. An appeal shall lie from the following orders under the provisions of Section 104, namely: -

(s) an order under Rule 1 or Rule 4 of Order XL except an order under the proviso to Sub-rule (2) of Rule 4;'

6. It is true that Rule 4 of Order XL says that tie Court may make any of those orders enumerated in that rule and that the Court of first instance did not make any such order but refused to make it. But, that in my opinion, does not alter the position to any extent whatsoever. Whether any of the orders referred to in Rule 4 is made or the Court refuses to make such order, the order eventually made is one under Rule 4 and is therefore clearly appealable, since it could not be said that an application under Rule 4, if rejected, must be taken to have been rejected under some other rule and not under Rule 4 of Order XL. Whether the application is granted or dismissed, the order made by the Court is always an order made under Rule 4 and is therefore clearly appealable.

7. These revision petitions therefore succeed. The orders of the District Judge are set aside and the District Judge is now directed to hear the appeals on their merits and to dispose of them according to law.

8. Costs of these revision petitions will be costs in the cause and will abide the eventual result.


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