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(Major) Anthony Ullyssess John and ors. Vs. Agra United Mills Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All72
Appellant(Major) Anthony Ullyssess John and ors.
RespondentAgra United Mills Ltd. and anr.
Excerpt:
- - 6. we are clearly of opinion that the appeal and the application for revision ought to be dismissed. rule 1 (1) (a), order 40, refers clearly to the appointment of the receiver, but is silent as to his removal. we are clearly of opinion that where a court appointing a receiver under order 40, civil p. , unless it is satisfied that either grave injustice or great inconvenience would otherwise be the result......in which they figured as plaintiffs, applied for the appointment of a receiver under order 40, rule 1, civil p.c. this application was granted on 30th november 1927 and one mr. raina was appointed. by order dated 17th january 1928 the salary of the receiver was fixed at rs. 600 per mensem. the court below did not definitely indicate in any of the aforesaid orders as to which of the parties should be liable to pay the salary or from what assets or funds the salary should be payable. the receiver was appointed at the instance of the plaintiffs and they appear to have understood that the salary of the receiver was payable by them. the plaintiffs paid rs. 12,000 in all for the salary of the receiver. on 10th august 1929, the receiver by, a written petition brought to the notice of the.....
Judgment:

Mears, C.J.

1. This appeal and the connected application for revision under Section 115, Civil P.C., are directed against an order passed by the Additional Sub-Judge of Agra, dated 5th September 1929. The initial question which calls for determination is whether the order is open to appeal or to revision in the alternative.

2. The appellants during the pendency of Suit No. 84 of 1927, in which they figured as plaintiffs, applied for the appointment of a receiver under Order 40, Rule 1, Civil P.C. This application was granted on 30th November 1927 and one Mr. Raina was appointed. By order dated 17th January 1928 the salary of the receiver was fixed at Rs. 600 per mensem. The Court below did not definitely indicate in any of the aforesaid orders as to which of the parties should be liable to pay the salary or from what assets or funds the salary should be payable. The receiver was appointed at the instance of the plaintiffs and they appear to have understood that the salary of the receiver was payable by them. The plaintiffs paid Rs. 12,000 in all for the salary of the receiver. On 10th August 1929, the receiver by, a written petition brought to the notice of the Court that for four months his salary had remained unpaid, and that he had not succeeded in definitely ascertaining the intention of the plaintiffs about the continuance of his services

3. This Court had by its orders, dated 2nd and 15th May 1929, sanctioned a scheme for the working of the Agra United Mills conditionally upon Genda Lal guaranteeing a minimum profit of Rs. 1,60,000 a year. In answer to the receiver's petition, the plaintiffs contended that they were not liable for the receiver's salary, that the said salary should be paid out of the income of the mills and that in any case they (the plaintiffs) would not be responsible for his salary after 10th September 1929. This application led to a serious contest on the part of the defendants. The Court below repelled the contentions of the plaintiffs and accepted the contention of the defendants in the following terms on 5th September 1929:

I allow the contention of the company. The plaintiffs' application is rejected. I order the plaintiffs to deposit the money in Court before 7th September 1929. As the' plaintiffs in their application 453 C have stated that they, will not be responsible for receiver's salary after 10th September 1929 so I order that the receiver give up his work and office and after 10th September 1929 he will cease to exist.

4. The order in question could have been more happily worded, but there is no difficulty in ascertaining its import.

5. The plaintiffs have appealed. They have also filed as an alternative measure an application for revision if it be held that the order was not open to appeal.

6. We are clearly of opinion that the appeal and the application for revision ought to be dismissed. A right of appeal is a creature of statute. Order 40, Rule 1, Civil P.C., provides inter alia for the appointment of the receiver. Order 43, Rule 1, provides that

an appeal shall lie from the following orders under the provisions of Section 104, viz. an order under Rule 1 or Rule 4, Order 40.

7. Mr. O'Conor for the appellants has not relied upon Rule 4, Order 40, because obviously that rule has no application to the case in hand. Rule 1 (1) (a), Order 40, refers clearly to the appointment of the receiver, but is silent as to his removal. There is nothing therefore either in Order 43 or in any other part of the Code of Civil Procedure which prescribes a right of appeal in the case the receiver being removed or dismissed. We are clearly of opinion that where a Court appointing a receiver under Order 40, Civil P.C., removes him from his office there is no right of appeal under Order 43 of the said Code. Our view is supported by a Bench ruling of this Court in re Sant Saran Das v. Gulab Das [1903] A.W.N. 67. This decision proceeded upon a construction of Section 588 of the old Civil P.C., (Act 14 of 1882), which corresponds to Order 43 of the Code now in force. The relevant texts of the two codes are identical.

8. It is not necessary to speculate upon the reason why no appeal has been provided from an order dismissing a receiver. It is enough that the statute has not conferred a right of appeal from such order. In the case last mentioned the learned Judges were of opinion that no appeal was allowed because the order was 'so purely mechanical.' Cases are conceivable where the receiver or the opposite party might put up a serious contest against the proposed removal of the receiver. We are inclined to think that this is an instance of a casus omissus and that the right of appeal was not provided for in the Code by inadvertence.

9. The appellants rely upon a decision of the Calcutta High Court in Sripati Datta v Bibhuti Bhusan Datta A.I.R. 1926 Cal. 593. This decision undoubtedly favours the contention of the appellants. We regret however that we cannot follow it. This decision proceeds upon the ground that under Section 16, General Clauses Act (Act 10 of 1897), the power to appoint includes the power to remove or dismiss and that therefore the right to appeal from an order of appointment must be held to include the right of appeal from an order of dismissal. We cannot follow this reasoning and we do not see what the principle underlying Section 16, General Clauses Act, has to do with the right of appeal. Where a right of appeal has to be expressly conferred by statute it cannot be presumed to exist by recourse to a rule of analogy or a rule of logic.

10. The application for revision under Section 115, Civil P. C, is equally untenable. Apart from technicality the order sought to be revised appears to us to be substantially just. This Court is reluctant to exercise its extraordinary power under Section 115, Civil P.C., unless it is satisfied that either grave injustice or great inconvenience would otherwise be the result. As pointed out by Lord Atkinson in Bala Krishna Udayar v. Vasudeo Ayyar A.I.R. 1917 P.C. 71 that Section 115 is not directed against conclusions of law or fact in which jurisdiction is not involved. Section 115 applies to jurisdiction alone, the regular exercise, or non-exercise of it, or the illegal assumption of it. Ex hypothesi the Court which has the power of appointing a receiver is also invested with the power of dismissal. The power of dismissal having been exercised by the Court having jurisdiction to do so, its discretion cannot be questioned by an application for revision. As the result we dismiss both the appeal and the revision with costs which in this Court will include fees on the higher scale.


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