Skip to content


Kutteer Vengayil Rayarappan Nayanar, Karnavan of Kutteer Vengayil Tarwad Vs. Kutteer Vengayil Valiya Madhavi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.O. No. 179 of 1949
Judge
Reported inAIR1950Mad212
ActsCode of Civil Procedure (CPC) , 1908 - Sections 104 - Order 40, Rule 1
AppellantKutteer Vengayil Rayarappan Nayanar, Karnavan of Kutteer Vengayil Tarwad
RespondentKutteer Vengayil Valiya Madhavi Amma and ors.
Appellant AdvocateAdvocate-General and A. Achuthan Nambiar, Adv.
Respondent AdvocateO.T.G. Nambiar, ;Balakrishna Kurup, ;D.A. Krishna Variar, ;Ravi Verma, ;V.P. Gopalan Nambiar, ;T.V. Raman and ;M.K. Nambiar, Advs.
DispositionAppeal dismissed
Cases ReferredSurendranath v. Nayarchand A. I. R.
Excerpt:
- - 779. 4. the only question that has given us some concern is whether the order complained of is appealable on the ground that the order of removal of the appellant is coupled with an order appointing two fresh receivers......[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.'with these remarks we respectfully agree. anthony ullyses john v. agra united mills ltd. : air1931all72 was approved of and followed in surendranath v. nayarchand a. i. r. 1947 pat. 438 : 25 pat. 779.4. the only question that has given us some concern is whether the order complained.....
Judgment:

Horwill, J.

1. The appellant was appointed a receiver in O. S. No. 28 of 1945. Upon a petition by some of the parties to the suit, who made certain allegations of maladministration, the appellant was removed from his receivership by the Subordinate Judge of Tellicherry and two others were appointed in his stead. A preliminary point argued in the appeal is whether the appeal is maintainable.

2. We have no doubt that the law in most High Courts, including this High Court, is that no appeal lies against an order removing a receiver. The matter came up directly for decision in C. M. A. No. 278 of 1914 before a Bench of this Court; and it was held that in the absence of any special provision in the Code for an appeal against an order removing a receiver, no appeal would lie. The learned Judges purported to follow Ramaswami Naidu v. Ayyalu Naidu, : (1924)46MLJ196 , although the question that came up for decision in that appeal was whether any appeal lay against an order refusing to remove a receiver. If an order removing a receiver were appealable, then an order refusing to remove a receiver would also be appealable and vice versa. Even if this matter were res integra, we should be of opinion that no appeal lies against the order removing a receiver; for Section 104, Civil P. C., begins by saying : 'An appeal shall lie from the following orders and . . . . . from no other orders' This seems to us to make it clear that unless an appeal is specially provided for in the Code, no appeal will lie against any order.

3. The learned Advocate-General relies on Sripati Datta v. Bibhuti Bushan Datta, : AIR1926Cal593 and Abdul Kadar v. R. M. P. Chettiar Firm, A. I. R. 1938 Rang. 387 : 1938 Rang. L. R. 586, in which it was held that an order removing a receiver was appealable. In both these oases, the learned Judges relied on the provisions of Section 16, General Clauses Act, which runs :

'Where . . . a power to make an appointment is conferred then . . . . the authority having the power to make the appointment shall also have power to suspend or dismiss any person in exercise of that power.'

We are unable to see how it can be argued from this section that an appeal would lie against an order removing a receiver. This provision can be relied on to show that a Court appointing a receiver has also power to remove him; but it would not follow that because the Court had power to remove a receiver that the order removing him was appealable. It seems to us that the reasoning of the learned Judges in this case runs counter to the express provisions of Section 104, Civil P. C., just quoted. In another Calcutta case, Monmohan Niyogi v. Surendrakumar Roy : AIR1933Cal52 , Sripati Datta v. Bhibuti Bhushan Datta, : AIR1926Cal593 was followed; but the opinion there expressed wag obiter, since the learned Judges went on to say that no appeal lay at the instance of a receiver who was not a party to the suit. These Calcutta decisions overlooked the earlier decisions of the Calcutta High Court such as, Eastern Mortgage and Agency Co., Ltd. v. Premanda Saha, 20 C. W. n. 789 : A.I.R. 1916 Cal. 824 and Sahebjada Faridun v. Fakir Muhammad, 24 I. C. 862 : A. I. R. 1914 cal. 786, which were followed in Ramaswami Naidu v. Ayyalu Naidu : (1924)46MLJ196 . That the opinion of the Allahabad and Patna High Courts is the same as in Madras can be seen from Anthony Ullyses John v. Agra United Mitts Ltd. : AIR1931All72 and Surendranath v. Nagarchand : AIR1947Pat418 . In the former case, the learned Judge who delivered the judgment of the Bench said :

'The appellants rely upon a decision of the Calcutta High Court in Sripati Datta v. Bibhuti Bhushan Datta : AIR1926Cal593 . 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 X [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.'

With these remarks we respectfully agree. Anthony Ullyses John v. Agra United Mills Ltd. : AIR1931All72 was approved of and followed in Surendranath v. Nayarchand A. I. R. 1947 Pat. 438 : 25 Pat. 779.

4. The only question that has given us some concern is whether the order complained of is appealable on the ground that the order of removal of the appellant is coupled with an order appointing two fresh receivers. It is argued that since an order appointing the two receivers would be appealable, then that same order, which incidentally removed the appellant from receivership, would be appealable on that ground also. In this particular case, we find from a reference to the Memorandum of Appeal that it is not a ground of appeal that two other persons were appointed receivers. The whole tenor of the grounds of appeal is that the appellant was wrongly removed. We do not wish to base our decision on this narrow ground, as we are of opinion that the order of the learned Judge should be considered as two distinct orders : one removing the appellant and the other appointing two new receivers. It would be indeed anomalous if the appellant, who has no right of appeal against the order of dismissal, would be entitled to appeal merely because at the same time the Court thought it necessary to appoint other receivers to administer the estate. Our attention has not been drawn to any case in which it has been held that the appointment of a successor gave a right to a dismissed receiver to canvass the grounds for his dismissal.

5. This appeal being not maintainable, it is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //