At the con mentement of arguments for admission Mr. J.R. Talia learned Counsel for the non petitioners raised a preliminary objection regarding the maintainability of the revision petition. According to him this is an order passed under Order 40, Rule 1 of the Code of Civil Procedure (herein after to be referred as the Code), hence is an appealable order under Order 43 Rule 1(s) of the Code.
2. It has been strenuously argued by him that the impugned order is specific on the point that the learned Magistrate has given a finding that receiver should be appointed in the case and the order for attachment of the tractor is an order cot sequential to the order for appointment of receiver. It has been urged that merely because certain person was not nominated by that order it will rot amount an interlocutory order rather it denotes that a final order about the appointment of receiver hid been parsed and only the nomination of the the receiver was to be made after the property was atta bed. To substantiate his contention Mr Tatia has placed reliance on the following authorities : (1) (sic)Palantuppi Chatty v. (sic)PohnuppaChetty and Ors. 1918 Madras 1146. (2) Gobind Ram and Ors. v. Ganesh Ram and Ors. 1932 Patna 577. (3) The Firm Raghuoeer Singh Joswant of Quetta v. Narijan Singh and Ors. 1923 Lahore 48 (4) Narisingha Charon nandy Chowdhary v. Rojniti Prasad Singh and Ors. 1932 Patna 360. (5) Kiratsingh and Ors. v. Bhai Kalusingh and Ors. 1934 Lahore 129. (6) K P. Thampy v. Ram Kurup (sic)Naroyanm Kurup. 1956 Trav Cochin 264.
3. The proposition of law laid down in the above referred cases is that if the Court gives the finding that a receiver should be appointed in a case to a later date for appointing any body by name as receiver, the order falls within the category of an order passed under O 43, R l(s).
4 Placing reliance on these authorities Mr. Tatia ernphaticaly argued that merely because some body was not named as receiver it can not be said that the impugned order was an interlocutory order so as to give a right to the aggrieved party to file the revision petition in this Court.
5 CoLtroverting these argumeuts Mr Shreemalee learned Counsel for the petitioner submitted that the impugned order shows that the court has expressed opinion that it would be proper to appoint a receiver but did not finally decide that the receiver should be appointed. According to him the order about the property being attached on the applicant's filing the process for the attachment before appointment of a receiver can not (sic)besjid to be an order under 0 40, R 1 so as to make it an appealable order under order 43, Rule I(s). To strengthen his argument he referred to the following authorit es:
(1) Narbadashanker Mugatram v. Kevaldas Raghunathdas 1915 Bombay 41.
(2) Mohammed Askari v. Nisar Husain and Ors. 1920 Allahabad 149.
(3) Raja Shyamlal Singh v. Raj Kumar Thakur Madhusudan Singh (sic)192' Calcutta 253
(4) Raje Gopalrae v. Raje Devidas and Ors. 1938 Nagpur 540.
(5) Ramchandra Dey v. Jhumaramal Jain and Ors. 1958 Assam 171
(6) Srinivasa Rae v. Baburao and Anr. 1970 Mysore 141.
6 The broad principle of law enunciated in these cases is that an order stating that it is just and convenient to appoint the receiver is merely an expression of opinion by the Court as to the expediency to the appointment of the receiver. These authorities laid the proposition that an order allowing an application for the appointment of a receiver without actually appointing any one to that office is not appealable because R 1 of 0 40 contemplates an order appointing the receiver.
7. Mr.Shreemalee contended that what is contemplated by 0rder 40, Rule 1 is appointment of a receiver and not only an interlocutory order proposing to appoint a receiver and therefore, the impugned order does not fall within the ambit of an order passed under 0rder 40, Rule 1 of the Code and therefore, can not be said to be appealable order under Order 43, Rule 1(s) of the Code.
8 On carefully going through these various authorities of various High courts it is evident that there is divergerce of the cpirion about the nature of (sic)ne'er passed under 0.40. R 1 so at to bring it within the categery of an appealable order 0 43, R i (a), I am in respectful agreement with the view that its case the Court accepts the application for appointment of receiver and adjourens the case for nominating any body for that post, it amounts to an order 0 40, R 1 and will be appealable under 0.43, R l(s). In my humble opinion the criteria should be whether the order in question is an interlocutory order expressing the opinion of the Court that it is just and convenient to appoint a receiver and then adjourn the matter for hnally deciding what it should do; or it is an order showing degree of finality by the decision of the Court that receiver should be appointed and appointing a particular person as required or in certain cases adjourn the cases merely for nominating some person as receiver. If the order falls in the first category it is an interlocutory order and will not be appealable under 0rder 43, Rule1(s) but if there is finality in the order the prcvisiors of Order 43, Rule 1(s) would be applicable. It will, therefore, depend on the nature of a particular order that the courts will decide whether it is an appealable order or not.
9. With this position of law in view, I will now turn to the impugned order to find cut whether it is an interlocutory order or a final one so far as the question of appointment of receiver is concerned.
10. The court has observed that on considering all the circumstances of the case in the opinion of the court it would be proper to attach the disputed tractor and appoint the receiver for the same so that the tractor may neither retrain in possession of applicant nor in possession of the non-appli-car is and the receiver would keep the account of the amount received by plying the tractor and that amount will be disposed of at the decision of the suit.
11. Mr. Tatia contended that though the court has not decided to appoint the receiver and has only opined that it will be proper to appoint the receiver, the work which their receiver would do has been clarified and therefore, order should be taken as final. On the other hand emphasis of Mr. Shreemalee is that upon the su(sic)oeeding paragraph of the order by which the court has ordered that after filing the process for attachment and the address where the tractor is by the applicant the order for the attachment of the tractor would be issued ard after the tractor being attached and on hearing both the parties appropriate order for the appointment of receiver for it would be passed. This clearly shows that this order was mainly for attachment of property which car not be said to be the subject matter of an order passed under Order 40 Rule 1 and he has grievanc against this part of the order which can not be said to be appealable under 0rder 43, Rule.1(s).
12. On the perusal of the two relevant paragraphs of the order I find that though the court has expressed as to what the receiver would do in case of appointment, it has not passed an order that receiver should be appointed rather had only expressed an opinion that in the circumstances of the case it would be proper to appoint a receiver. Order for attachment of the property prior to the appointment of receiver does not fall within the ambit 0rder.40, Rule.1. Apart from it the concluding line of the operative portion of the impugned order speaks about the hearing of both the parties after the attachment of the tractor and then passing an appropriate order for the appointment of receiver for the same.
13. In my opinion this is not a case in which Court has finally decided that receiver should be appointed and adjourned the case only for nominating some body for the post of receiver rather it is an interlocutory order for attachment of the property and the final order on the application for appointment of receiver was to be passed after hearing both the parties.
14. In such circumstances the order having no degree of finality is not appealable under 0rder.43, Rule 1(s) and therefore, the revision petition is maintainable. The preliminary objection is therefore, over ruled.
15. On hearing the learned Counsel for the parties on the question of admission of the revision petition it appears that there are arguable points involved in the matter, Hence the revision petition is admitted. Notice of the revision petition may be issued to the non-petitioners.