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Ryru Nair Vs. Govindan Nair - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 78 of 1959
Judge
Reported inAIR1961Ker75
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1 - Order 43, Rule 1
AppellantRyru Nair
RespondentGovindan Nair
Appellant Advocate A. Achuthan Nambiar and; T.P. Kelu Nambiar, Advs.
Respondent Advocate V.P. Gopalan Nambiar, Adv.
DispositionRevision dismissed
Cases ReferredKochu Kumari v. Krishnan Janardhan
Excerpt:
.....court or with the high court of madras. , who delivered the judgment of the bench observed that in view of the decision of the federal court in rayarappan nayanar's case, air 1950 fc 140, the decision of the patna high court in air 1947 pat 418, could no longer be considered good law and i respectfully agree with this view. similarly to my mind it is clear that an order discharging a receiver and an order refusing to discharge a receiver are but the obverse and the reverse of the same coin and if the former falls under order 40, rule 1 under the federal court ruling, i fail to understand how the latter does not fall under the same order 40, rule 1. if the order of refusal falls under order 40, rule 1, naturally that order becomes appealable, because all orders under order 40, rule 1 are..........now the question arises as to what i should do in the above circumstances. if i am bound by a bench decision of the travancore-cochin high court, then the course open to me is to see that the present case before me is placed before a full bench, so that the conflicting views expressed in the two bench decisions referred to above are either reconciled or one of those views is overruled. if on the other hand i am not bound by the bench decisions of the travancore-cochinhigh court and those decisions have only persuasive value, then i am free to interpret the federal court decision and, am bound to follow it if it covers the question before me.5. i am of the opinion that, sitting as a judge of the kerala high court, i am not bound by the decisions of the travancore-cochin high court......
Judgment:
ORDER

T.C. Raghavan, J.

1. Two questions are raised in this Civil Revision Petition, one regarding the interpretation of an order, Ext. A3, as to whether it is an order appointing a receiver and the other regarding the appeal ability of an order refusing to remove a receiver. The trial court held that Ext. A3 was not an order appointing a receiver, but the order only allowed the petitioner herein to continue in possession of the properties on certain terms and in that view it dismissed the application filed by the respondent herein to remove the petitioner from receivership.

The respondent herein filed an appeal before the lower appellate court, which reversed the decision of the trial court and directed the discharge of the receiver. The petitioner, who was respondent in the lower appellate court and who was directed to be removed from receivership, has filed the present Civil Revision Petition and, as I have already indicated, two contentions have been urged before me, one regarding the interpretation of Ext. A3 and the other regarding the maintainability of the appeal before the lower appellate court against the order of the trial court refusing to remove the petitioner herein from receivership.

2. I shall first consider whether Ext. A3 is an order appointing the petitioner as receiver. In the course of the discussion, the learned Judge, who passed the order Ext. A 3, expressed the opinion that there were no sufficient grounds to oust the petitioner herein from possession of the Properties and to have a third party appointed as receiver. At any rate, towards the end of the order he said:

'In my opinion the interests of justice would be sufficiently that if the plaintiff is put on terms and directed to be in possession and management of the properties as receiver.'

Whatever might have been the grounds for passing this order, the order is clear that the plaintiff, i.e., the petitioner herein, was directed to be in possession and management of the properties as receiver. Therefore there is no force in the contention that Ext. A3 is not an order appointing the petitioner as receiver but it only directed him to continue in possession on terms,

This order was taken up in appeal and Ext. A2 is the decree passed in appeal.

This also indicates that the order of the lower court was treated as an order appointing the plaintiff in the suit as receiver. The suit itself was finally disposed of by the judgment evidenced by Ext. A4 and there also the learned Judge observes that the plaintiff was appointed receiver. In view of these categorical observations, I am inclined to hold that Ext. A3 is an order appointing the present petitioner as receiver. This leads me on to the consideration of the next question, whether the appeal to the lower appellate court against the order of the trial court refusing to discharge the petitioner from receivership was competent.

3. Mr. Kelu Nambiar, the learned advocate of the petitioner, has carefully placed before me all the relevant decisions on this question. I shall deal with only three or four o them, because, according to me, the question is practically covered by a decision of the Federal Court in Kutoor Vengayil Rayarappan v. Madhavi Amma, AIR 1950 FC 140. Before I consider this decision, I shall refer to two decisions of the Travancore Cochin High Court on this question. The earlier of these two decisions is Skari Kuruvilla v. Mathai Avira, 1954 Ker LT 981.

The Division Bench which decided this case took the view that an order refusing to remove a receiver was not covered by the decision of the Federal Court in Rayarappan Nayanar's case and therefore held that such an order was not appealable. In a later Divisional Court ruling of the same court in Velayudhan Narayanan v. Mathevan Narayani. 1954 Ker LT 791: ((S)AIR 1955 Trav-Co. 163) a contrary view was taken. This Bench held that an appeal from an order dismissing the application for the discharge of a receiver was maintainable. I may at this stage mention that the earlier decision in, 1954 Ker LT 981 had not been brought to the notice of the later Bench.

But both the decisions had discussed the Federal Court decision in Rayarappan Nayanar's case and had interpreted, this decision. According to the earlier decision, the Federal Court decision was no authority for the proposition that an appeal lay against an order refusing to discharge a receiver, but according to the later decision the reasoning in the same Federal Court decision supported the view that an appeal lay against an order refusing to discharge a receiver, but according to the later decision the reasoning in the same Federal Court decision supported the view that an appeal lay against an order of refusal to discharge a receiver. Thus these two decisions are directly in conflict.

4. Now the question arises as to what I should do in the above circumstances. If I am bound by a Bench decision of the Travancore-Cochin High Court, then the course open to me is to see that the present case before me is placed before a Full Bench, so that the conflicting views expressed in the two Bench decisions referred to above are either reconciled Or one of those views is overruled. If on the other hand I am not bound by the Bench decisions of the Travancore-CochinHigh Court and those decisions have only persuasive value, then I am free to interpret the Federal Court decision and, am bound to follow it if it covers the question before me.

5. I am of the opinion that, sitting as a Judge of the Kerala High Court, I am not bound by the decisions of the Travancore-Cochin High Court. The binding nature of the decisions of one High Court on the Judges of another High Court has been considered in a few cases and Mr. Kelu Nambiar has placed before me three Full Bench decisions on this question. The first is Lekshmi-kutty Amma v. Madhavan Pillai, AIR 1958 Kerala 111: 1957 Ker LT 1196 where an observation appears to the effect that to the Judges of the Travancore-Cochin High Court and the Kerala High Court the decisions of the Travancore and Cochin High Courts have only a pursuasive effect.

No further discussion regarding the question obtains in this judgment. Another illuminating judgment on this question is a Full Bench decision of the Andhra High Court in Subbarayndu v. The State, (S) AIR 1955 Andhra 87. In that case Subba Rao, C. J., discusses the binding nature of the precedents of one court on another and the learned Chief Justice observes that such binding nature depends upon the fact whether such courts are courts of co-ordinate jurisdiction and His Lordship further considers the connotation of the word 'co-ordination' and expresses the view that this term does not mean the same as the words 'concurrence or simultaneity'.

Proceeding further, the learned Chief Justice comes to the conclusion that the decisions of the Madras High Court were binding on the Andhra High Court, because the Andhra High Court was in a real sense, an off-shoot of the Madras High Court exercising the same jurisdiction and administering the same laws which the Madras High Court had exercised prior to 5th July, 1954 in the territories included in the Andhra State. According to the learned Chief Justice, and I most respectfully agree with this view, the Andhra High Court may be treated as one succeeding to the High Court of Madras and exercising all the powers and administering the same law which the Madras High Court exercised for the territories comprised in the Andhra State.

In other words the High Courts of Andhra and Madras were courts of co-ordinate jurisdiction. The third Full Bench decision brought to my notice by Mr. Kelu Nambiar is Basappa V, The State, AIR 1959 Mys 1. The Full Bench held in that case that the Mysore High Court as constituted after the re-organisation of States on 1st November, 1956 was not bound by the decisions of the former Chief Court of Mysore and of the former High Court of Mysore. The High Court of Mysore, which was established after the re-organisation of States, was by no means the representative of the High Court of the former State of Mysore.

Nor is the present High Court of Mysore a court of co-ordinate jurisdiction with the former Mysore High Court, because, as a result of the reorganisation of States, different parts of different States have been combined to form the new State of Mysore and the Mysore High Court, whichwas established after such re-organisation, is a new High Court and by the States Re-organisation Act, the former High Court of Mysore was abolished. These decisions clearly indicate that the High Court of Kerala constituted after the States Re-organisation Act is a new High Court, not coordinate in jurisdiction either with the former Travancore-Cochin High Court or with the High Court of Madras.

The Kerala State was constituted taking portions of the territories of the former State of Travancore-Cochin and the former State of Madras and the Kerala High Court was constituted for this new State. Therefore the Kerala High Court is not a successor of either the Travancore-Cochin High Court or the Madras High Court and in that view the judges of the Kerala High Court are not bound by the decisions of either of the said High Courts.

6. In the light of the above discussion the course that I have to follow, regarding the two conflicting Division Bench rulings of the Travancore Cochin High Court referred to above, is clear. The views expressed in both those decisions have only persuasive value on me and therefore I am free to follow either of those views or neither of them. The reasoning of Mahajan, J., who delivered the judgment of the Federal Court in AIR 1950 FC 140, is as follows:

Under Section 16 of the General Clauses Act, the power to appoint includes the power to remove or to dismiss. Therefore the power to appoint a Receiver under Order 40, Rule 1 C.P. C., includes the power to remove the Receiver also and hence an order discharging a Receiver is equally an order under Order 40, Rule 1 as an order appointing a receiver. Before the Federal Court, the question for consideration was whether such an order removing a receiver was appealable and their Lordships of the Federal Court held that it was, The question whether an order refusing to remove a Receiver was appealable was not specifically before the Federal Court in that case. Such a question arose in Surendra Nath v. Nagar Chand, AIR 1947 Pat 418, and Fazl Ali, C. J., delivering the judgment of the Division Bench, held that an order refusing to discharge a Receiver was not appealable. This case was cited before the Federal Court and their Lordships did not specifically overrule this decision, as the question before them

was only the removal of a Receiver and not refusal to remove. Basing on this and the following passage appearing in the judgment of the Federal Court,

'There the order appealed against was one refusing to remove a person from his position as Receiver. This distinction, however, does not materially affect the question. In this case also no reference was made to Section 16, General Clauses Act'

Subramonia Iyer, J., who delivered the Judgment of the Court in 1954 Ker LT 981, expressed the opinion that that observation of the Federal Court must be understood as confined to the specific question that arose in the particular case with which their Lordships were dealing. With all respect to the learned Judge, I find it difficult to

agree with this reasoning. Subramonia Iyer, J., followed another previous decision in Kochu Kumari v. Krishnan Janardhan, 1952 Ker LT 139: (AIR 1952 Trav-Co 248), which was decided by the same learned Judge sitting alone.

In the other decision of the Travancore-Cochin High Court in 1954 Ker LT 791: ((S) AIR 1935 Trav-Co 163), Joseph J., who delivered the judgment of the Bench observed that in view of the decision of the Federal Court in Rayarappan Nayanar's case, AIR 1950 FC 140, the decision of the Patna High Court in AIR 1947 Pat 418, could no longer be considered good law and I respectfully agree with this view.

7. Now I shall give my reasons for the above view. The order refusing to appoint a Receiver is only a counter-part, if I may use that expression, of an order appointing a Receiver. Therefore, such an order refusing to appoint a Receiver will fall under Order 40, Rule 1 equally as an order appointing a Receiver and I do not think that there will be any dispute to this position. Similarly to my mind it is clear that an order discharging a Receiver and an order refusing to discharge a Receiver are but the obverse and the reverse of the same coin and if the former falls under Order 40, Rule 1 under the Federal Court ruling, I fail to understand how the latter does not fall under the same Order 40, Rule 1. If the order of refusal falls under Order 40, Rule 1, naturally that order becomes appealable, because all orders under Order 40, Rule 1 are appealable under Order 43, Rule l(s).

8. The foregoing reasoning makes it clear that the appeal to the lower appellate Court in the present case was competent and this Civil Revision Petition is liable to be rejected. I, therefore, dismiss the Civil Revision Petition, but, in view of the apparent uncertainty of the legal position, without costs.


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