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Kutoor Vengayil Rayarappen Nayanar Karnavan of Kullon Vengayil Tarwad Vs. Kutoor Vengayil Valiyu Madhavi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Misc. Petn. No. 6017 of 1949
Judge
Reported inAIR1950Mad215
ActsCode of Civil Procedure (CPC) , 1908 - Sections 109
AppellantKutoor Vengayil Rayarappen Nayanar Karnavan of Kullon Vengayil Tarwad
RespondentKutoor Vengayil Valiyu Madhavi Amma and ors.
Appellant AdvocateAdvocate General and ;A. Achutan Nambia, Adv.
Respondent AdvocateO.T.G. Nambiar, ;D.A. Krishna Variar and ;M.K. Nambiar, Advs.
DispositionPetition dismissed
Cases ReferredMahomed Musaji v. Ahmed Musaji
Excerpt:
- - this is such a well-recognised principle of law that authority for this proposition should hardly be necessary......in which after a full discussion of the various decisions it was held that an order appointing or removing a receiver was not a final order.3. if the order is not a final order then an appeal will lie to the federal court only if in the words of section 109(a), civil p. c., it can be 'certified to be a fit one for appeal.' this subsection is no doubt very widely expressed ; and it might not be easy, in the absence of authority to say whether a case was a fit one for hearing by the federal court or not but it is clear that leave to appeal to the federal court should not be granted unless the question raised is a matter of considerable importance. the propriety of granting a certificate under this sub-section was considered by their lordships of the privy council in benoy krishna.....
Judgment:

Horwill, J.

1. In this application for leave to appeal to the Federal Court against the order of this Court dismissing as not maintainable an appeal against the order of the Subordinate Judge of Tellicherry removing the petitioner from receivership and appointing two others, it has been argued that the petitioner has the right to appeal either under Section 109(a) or Section 109(c), Civil P. C.

2. As for the first contention that the order passed by us was a final order, it is sufficient to state that a final order is contemplated under Section 109(a) must be one which affects finally the rights of parties. An order removing or appointing a receiver does not affect at all the rights of the parties ; it is merely an order making provision for the due preservation of the estate during the pendency of the suit. This is such a well-recognised principle of law that authority for this proposition should hardly be necessary. We, therefore, content ourselves with referring to Rajnithi v. Nrisingha : AIR1933Pat293 , in which after a full discussion of the various decisions it was held that an order appointing or removing a receiver was not a final order.

3. If the order is not a final order then an appeal will lie to the Federal Court only if in the words of Section 109(a), Civil P. C., it can be 'certified to be a fit one for appeal.' This subsection is no doubt very widely expressed ; and it might not be easy, in the absence of authority to say whether a case was a fit one for hearing by the Federal Court or not but it is clear that leave to appeal to the Federal Court should not be granted unless the question raised is a matter of considerable importance. The propriety of granting a certificate under this sub-section was considered by their Lordships of the Privy Council in Benoy Krishna Mukherjee v. Satish Chandra Giri, 66 cal. 720 : A. I. R. 1928 P. C. 49, where they remarked :

'They think it right to add that, as a general rule and in the absence of special circumstances or some unusual occasion for its exercise, the power of making interlocutory orders is one which is not a suitable subject for review by the Judicial Committee.'

It is no doubt true that the question decided by us is one of jurisdiction ; but the matter is not here of any great importance, nor can the question whether one person or another should be appointed as receiver ordinarily be of any great practical importance. We do not therefore consider that this is a fit case for the granting of a certificate for appeal to the Federal Court. We are fortified in our conclusion by the remarks of the learned Judges in Mahomed Musaji v. Ahmed Musaji, 18 C. L. J. 507 : 10 I. C. 439, where they said, in considering a similar application :

'We are, however, not concerned with the propriety or otherwise of the order against which leave is sought; it is sufficient to say that no special question arises, such as would justify an order under clause (c) of Section 109 of the Code or under Clause 40 of the Letters Patent.'

The petition is dismissed with costs.


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