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Syed Mohamed Askari Vs. Qazi Nisar HusaIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in54Ind.Cas.520
AppellantSyed Mohamed Askari
RespondentQazi Nisar HusaIn and ors.
Cases ReferredRamji v. Koman Das
Excerpt:
civil procedure code (act v of 1908), order xl, rule 1, order xliii, rule 1(s) - order allowing application for appointment of receiver--appeal, whether lies. - .....regarding security, remuneration and property to be taken possession of within a month.' the present appeal has been preferred from that order. it is an admitted fact that no receiver has, up to the present time, been appointed. so there is no order by the court below actually appointing a receiver but merely an expression by the court of its intention to appoint. order xliii, rule 1, clause (s), grants a right of appeal against an order under rule 1 of order xl. order xl, rule 1, says where it appears to the court to be just and convenient, the court may by order appoint a receiver; and it is, therefore, clear that the law gives a right of appeal only against an order appointing a receiver, and not against an expression by the court below of its intention to appoint. the matter is.....
Judgment:

1. A preliminary objection is taken that no appeal lies from the order of the Court below. In the suit in question an application was made by the plaintiffs for the appointment of a Receiver. The defendants objected and after hearing arguments the Court passed an order to the following effect: 'I would, therefore, allow the application for appointment of a Receiver. Plaintiffs to suggest names for selection with particulars regarding security, remuneration and property to be taken possession of within a month.' The present appeal has been preferred from that order. It is an admitted fact that no Receiver has, up to the present time, been appointed. So there is no order by the Court below actually appointing a Receiver but merely an expression by the Court of its intention to appoint. Order XLIII, Rule 1, Clause (s), grants a right of appeal against an order under Rule 1 of Order XL. Order XL, Rule 1, says where it appears to the Court to be just and convenient, the Court may by order appoint a Receiver; and it is, therefore, clear that the law gives a right of appeal only against an order appointing a Receiver, and not against an expression by the Court below of its intention to appoint. The matter is covered by many decisions. It was decided by the Calcutta High Court in Upendra Nath Nag Chowdhry v. Bhupendra Nath Nag Chowdhry 9 Ind. Cas. 582 : 13 C.L.J. 157 and also, by the Bombay High Court in the case of Narbadashankar Mugatram Vyas v. Kevaldas Raghunathdas 29 Ind. Cas. 504 : 17 Bom.L.R. 510 and also by one own Court in the case of Ramji v. Koman Das 27 Ind. Cas. 646 : 13 A.L.J. 79. The only decision in favour of the present appellant is one of the Madras High Court in the case of Palaniappa Chetty v. Palaniappa Chetty 40 Ind. Cas 185 : 40 M. 18 : 32 M.L.J. 304 : (1917) : M.W.N. 393 : 5 L.W. 776. That was a decision of three Judges in which two held that an appeal would lie from an order such as the one now before us, but the third Judge disagreed. Moreover, an examination of the report shows that the third Judge fully agreed with the two Judges of the same Court who had referred the matter for the decision of a Full Bench, with a view to the upsetting of a previous decision of the Madras High Court with which they did not agree. 'The decision in the case of Ramji v. Koman Das 27 Ind. Cas. 646 : 13 A.L.J. 79 is one which to our own knowledge has been followed more than once in this Court. We see no reason whatsoever to differ from the mass of opinion which is all against the appellant. We must, therefore, accept the preliminary objection. We hold that no appeal lies. The appeal will, therefore, be dismissed. We make no order as to costs as no certificate has bean filed.


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