Skip to content


R.M.P. Palaniappa Chetty Vs. M.S.A.P.L. Palanippa Chetty - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in65Ind.Cas.403
AppellantR.M.P. Palaniappa Chetty
RespondentM.S.A.P.L. Palanippa Chetty
Cases ReferredShrinivas Kuppuswami Mudaliar v. Waz
Excerpt:
.....property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance, if any, to the receiver, the order contemplated by this rule is an order for an attachment of the receiver a property' and for realization of money by means of such attachment, the order now appealed against is obviously not an order under rule 1, nor is it an order of attachment under rule......1, clause (s) of the code of civil procedure, 1908, provides for an appeal against an order under rule 1 or rule 4 of order xl. rule 1 of order xl deals with the appointment of receivers, rule 2 deals with the remuneration to be paid for his services: rule 3 lays down the duties of a receiver and rule 4 provides the procedure for the enforcement of the receiver's duties. it lays down that where a receiver fails to submit his accounts at such periods and in such form as the court directs or fails to pay the amount due from him as the court directs, or occasions loss to the property by his wilful default or gross negligence, the court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss.....
Judgment:

1. Civil Miscellaneous Appeal No. 282 of 1920 is an appeal against the order of the Additional Subordinate Judge of Ramnad directing the 1st defendant to pay a sum of Rs. 36,100 into Court, being made up as follows:

(1) Rs. 56,250 being the income derived by the 1st defendant as Receiver daring the years 1914 to 1919;

(2) Rs. 5,850 being the difference between the market price at the time of harvest as entered in the accounts and market rate at the time the paddy was actually sold.

2. The 1st defendant was given credit for Rs. 21,000 on account of assessment paid by him during the said period of five years and a farther sum of Rs. 5,000 on account of establishment charges. It may be mentioned that the accounts of the Receiver have not been finally passed; but so far as they have been taken, the Subordinate Judge seems to be of opinion that the 1st defendant would be liable in any event to deposit this sum of Rs. 36,100 into Court, It is against this order that this appeal has bean preferred by the 1st defendant.

3. A preliminary objection is raised on behalf of the respondent that no appeal lies Order XLIII, Rule 1, Clause (s) of the Code of Civil Procedure, 1908, provides for an appeal against an order under Rule 1 or Rule 4 of Order XL. Rule 1 of Order XL deals with the appointment of Receivers, Rule 2 deals with the remuneration to be paid for his services: Rule 3 lays down the duties of a Receiver and Rule 4 provides the procedure for the enforcement of the Receiver's duties. It lays down that where a Receiver fails to submit his accounts at such periods and in such form as the Court directs or fails to pay the amount due from him as the Court directs, or occasions loss to the property by his wilful default or gross negligence, the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance, if any, to the Receiver, The order contemplated by this rule is an order for an attachment of the Receiver a property' and for realization of money by means of such attachment, The order now appealed against is obviously not an order under Rule 1, nor is it an order of attachment under rule.

4. On a construction of Rule 4 of Order XL and Rule 1, Clause (s) of Order XLIII it seems to us that no appeal lies against the order of the Subordinate Judge giving directions to the Receiver to pay a certain sum of money into Court. We are supported in this view not only by the plain language of the rules in question but also by authority. It was held by the Calcutta High Court under the old Code of Civil Procedure that directions given by a Court in passing the Receiver's accounts are not appealable, vide Keshobati Kumari v. Macgregor 35 C. 568, See also Mohini Mohan Patra v. Baroda Kanta Sarkar 12 Ind. Cas. 780 , The case of Ganesh Lal v. Kumar Satya Narayan Singh 54 Ind. Cas. 207 is directly in point. See also Samhautta Singh v. Bhagwati Singh 55 Ind. Cas. 15 , There the learned Judges have held that an order declaring a Receiver liable in respect of a sum of money is not appealable unless it is accompanied by an order of attachment under Rule 4 of Order XL. They observe that 'it is sufficient to say that under the present Code of Civil Procedure a decision of this nature would not teem to be appealable unless it is accompanied by an order under Rule 4 of Order XL that rule gives a Court power to take certain steps against the Receiver for the realization of the money and it seems that, in the present case, until the Subordinate Judge acts under this rule, there is no right of appeal by the Receiver.'

5. The learned Vakil for the appellant relies, however, on the decision in Shrinivas Kuppuswami Mudaliar v. Waz 59 Ind. Cas. 421 . The facts in that case are distinguishable and the decision is no authority on the specific question with which we have to deal here, namely, whether a direction to the Receiver to pay a certain amount, not followed up by an order of attachment as contemplated by Rule 4, is a final order under Rule 4 as to give the aggrieved party a right of appeal.

6. We are of opinion that the decision in Shrinivas Kuppuswami Mudaliar v. Waz 59 Ind. Cas. 421 does not support the contention of the appellant. On the other hand, the plain language of the rules shows that the Receiver's right of appeal arises only on an order of attachment being passed by the lower Court. The other decisions we referred to above also support this view. We accordingly hold that no appeal lies and dismiss this appeal with costs.

7. We are not prepared to interfere in revision as the lower Court has jurisdiction to entertain this matter and the appellant has his remedy by way of appeal when an order of attachment is passed. We dismiss the Civil Revision Petition No. 132 of 1921.


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