Chandra Reddy, J.
1. This revision petition is directed against the order of the Subordinate Judge of Mayuram dismissing an appeal filed by the petitioner against the order dated 4-4-1950 passed by the District Munsif of Mayuram in I. A. 230 of 1949 in O. S. No. 93 of 1948 as being incompetent.
2. I. A. No. 230 of 1949 giving rise to this revision petition was filed in O. S. No. 95 of 1948 which was a suit for a declaration that the plaintiff and defendants 7 to 12 were the next heirs to the estate of one Mathurathammal and for partition and allotment of a l/7th share to each of the plaintiff and defendants 7 to 12 and for future mesne profits etc. The suit ended in a compromise under which division and allotments were to be effected in a particular way and that the first defendant should be appointed Receiver of the suit property till the end of the sambha harvest or the final decree proceedings whichever was later and that he should maintain and render proper accounts for the management.
3. The interlocutory application mentioned above was filed 'inter alia' for a direction to the first defendant as receiver to submit his accounts with vouchers and on his doing so and the parties filing surcharges and objections thereto for ascertaining the receiver's liability and directing him to pay the amounts due to the parties. The trial Judge on the materials placed before him ascertained the total income to be Rs. 2920-7-0 and the total expenses Rs. 937-6-0 and the liability of the Receiver was fixed at Rs. 1983-1-0. The Receiver was directed to pay this amount into court. It was also observed in that order 'as to how this amount has to be apportioned among the legatee group and the residuary group mill be decided after hearing the parties'.
4. The petitioner filed an appeal against the order of the trial court contending that a much larger sum was due and payable by the receiver to the estate. The Subordinate Judge dismissedthe appeal holding that he had no jurisdiction to entertain it as the order appealed against would not come under Order 40 Rule 4 C. P. C., for the reason that the order determining the liability of the Receiver was not a final one as the question as to how the amount to be deposited by the Receiver was to be distributed amongst the legatee group and the residuary group was left open.
5. In this revision petition Mr. Chandrasekhara Sastri urged that for a consideration of the question as to whether the order appealed against falls under Order 40 Rule 4 C. P. C., or not, the fact that the mode of distribution was not decided is absolutely irrelevant. I think there is substance in this contention and I have to hold that irrespective of whether the apportionment of the amount deposited into court was made or not, the matter falls within the ambit of Rule 4 of Order 40 C. P. C.
6. Mr. Thiyagaraja Aiyar on behalf of the respondents sought to support the judgment of the lower appellate court on different grounds. Ho urged that unless and until the liability of the Receiver fixed by the court was enforced by the attachment of the properties of the receiver, it could not be said that there was any order under Rule 4 of Order 40, C. P. C. In support of this contention reliance was placed on a Bench ruling of this court in -- 'Palaniappa Chetti v. Palaniappa Chetti', AIR 1922 Mad 234 (A). There a Receiver was ordered to pay a certain sum of money into court and he appealed against that order. The appeal was rejected on the ground that it was not an order under rule 1 or rule 4 of Order 40 C. P. C. It was held that the order was not attracted by the provisions of rule 4 as it was not followed by an order of attachment of the receiver's properties. It was observed by the learned Judges that the order contemplated by Rule 4 is an order for attachment of the Receiver's property and for realisation of money by means of such attachment and therefore obviously the order appealed from was not an order of attachment under Rule 4. The learned Judges followed the decisions of the Calcutta and Patna High Courts which took the view that unless the order comes under rule I or rule 4 of Order 40 C. P. C., no appeal lies against the directions given to the receiver. With great respect I must state that the rulings are perfectly sound being based on the provisions of law as they existed then. These are decisions rendered prior to the amendment of Rule 4 of Order 40 and Order 43 Rule 1(a) C. P. C., by this court in P. Dis. No. 60 of 1933. Before this amendment Rule 4 of Order 40 C. P. C., ran as follows : 'Where a receiver
(a) fails to submit his accounts at such periods and in such form as the court directs or
(b) fails to pay the amount due from him as the court directs, or
(c) occasions loss to the property by his willful 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.'
It is seen that it was the operative portion of Rule 4 that enabled the court to pass an order for attachment and sale of the Receiver's property on any of the three grounds mentioned in that rule. It is clear that there would be no final order passed under that rule unless the operative part was complied with. It is obviously for these reasons that this court in -- 'AIR 1922 Mad 234 (A)', held that the receiver could wait till the order of attachment contemplated by that rule was passed.
7. Subsequent to this ruling in -- 'AIR 1932 Mad 234 (A)', Rule 4 was substituted by an altogether new rule in Dis. No. 60 of 1933. The present Rule 4 is divided into three paragraphs. We are concerned here with only the second paragraph as the order was passed under Sub-rule (2) which provides :
'The Court may, at the instance of any party to any suit or proceeding in which a receiver, has been appointed or of its own motion, at any time make an enquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss, to the property has been occasioned by his willful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into court or otherwise within a period to be fixed by the court. All parties to the suit or proceeding and the receiver shall be made parties to any such enquiry. Notice of the enquiry shall be given by registered post to the surety, if any, for the receiver; but the cost of his appearance shall be borne by the surety himself unless the court otherwise directs;
Provided that the court may, where the accounts are disputed by the parties and are of a complicated nature or where it is alleged that loss has been occasioned to the property by the willful default or gross negligence of the receiver, refer the parties to a suit. In all such cases the court shall state in writing its reasons for the reference.'
8. By the aforesaid P. Dis. No. 60 of 1933 Rule l(s) of Order 43 C. P. C., was also amended by introducing the words 'except an order under the proviso to Sub-rule (2) of Rule 4'. It has not been disputed in this case that the order passed by the trial court does not fall within the scope of Sub-rule (2). But what is argued is that despite the amendment, the law as laid down in -- 'AIR 1922 Mad 234 (A)', holds the field and that an appeal does not lie unless an order is passed directing the attachment of the Receiver's properties. In other words, the argument of Mr. Thyagaraja Aiyar is that no appeal lies against an order passed under Sub-rule (2) of Rule 4 because that sub-rule does not contemplate an order for attachment of the Receiver's properties and it is only Sub-rule (1) and Sub-rule (3) that provide for the attachment of the properties of the receiver under the conditions mentioned therein.
9. I do not think I can accede to this contention. Under the amended Clause (s) of Rule 1 of Order 43 C. P. C., an order under Rule 4 of Order 40 except one under the proviso to Sub-rule (2) of Rule 4 is made appeal able, which means every order passed under Rule 4 except under the said proviso, viz., where the parties are referred to a suit by the court can be appealed against. If that is so, I fail to see how an order passed under Sub-rule (2) to Rule 4 cannot come within the purview of Rule l (s) of Order 43 C. P. C. It cannot be disputed that an order under Sub-rule (2) is also an order passed under Rule 4. Clause (s) of Rule 1 of Order 43 C. P. C., does not lay down that an appeal lies only against an order passed under Sub-rule (1) or Sub-rule (3) of Rule 4. It is couched in general terms and exception is made only in respect of an order passed under, the proviso to Sub-rule (2) of Rule 4. In this situation it can be said that no appeal lies against an order passed under Sub-rule (2) of Rule 4
10. For the reasons indicated above, I feel thatthe principle laid down in -- 'AIR 1922 Mad 234(A)', is not applicable in view of the changeseffected in Rule 4 of Order 40 and Sub-clause (s)of Rule 1 of Order 43 C. P. C. It follows that theorder of the Subordinate Judge holding that theappeal is unsustainable ought to be set aside. Theappeal will be remitted to the Subordinate Judgefor disposal on the merits. Although the firstrespondent has not preferred a revision, his crossobjections also will be revived as a result of theallowing of this civil revision petition. The petitioner will get his costs in this court. The costsin the lower appellate court will abide the resultof the appeal.