Sadasiya Aiyar, J.
1. The prayers in the petition put in by the 1st defendant (2nd respondent) and by his sons (the 3rd and 4th respondents) are as follows: (a) that the petitioners may be placed in possession by the Receiver appointed in the suit of the lands comprised in a list which might be called list A as well as of the ploughing cattle and other agricultural implements relating thereto, and (b) that such joint family debts as had been found to be binding on all the members of the family and not in appeal in the High Court might be ordered to be paid oat of the family funds in the Court deposit.
2. This petition is put in under Section 15 of the Charter Act and Section 94 of the Code of Civil Procedure. I do not think Section 15 of the Charter Act has any application. Section 94 of the Civil Procedure Code is very general in its terms. So far as this petition is concerned, it is as follows: 'In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed...(e) make such other interlocutory order as may appear to the Court to be just and convenient.' The word 'prescribed' is defined in Section 2 Clause 16 as meaning 'prescribed by rules.' I do not think that the prayers of this petition come under any rules contained in, or passed in accordance with, the Civil Procedure Code. This suit is a suit for partition among three branches of a Hindu family; the suit is now nearly eight years old. The parties have been kept out of the enjoyment of any benefit out of the family property for more than 10 years past. A Receiver has been appointed for the very extensive landed and other properties of the family by the lower Court. Daring the progress of the suit in the lower Court, three lists were put in and accepted by all parties as effecting a fair division of about half of the family lands into three equal shares. Lots were cast and the properties in the A list fell to the share of the 1st defendant and his sons, (the petitioners in this petition), the C list fell to the share of the 6th defendant (5th respondent), and the B list fell to the share of plaintiff and the 5th defendant (the appellant). See paragraph. 40 (a) of the Subordinate Judge's judgment. The properties in the B list (1/3 share) were to be divided into equal halves as between plaintiff and 5th defendant. Fifth defendant is now dead and his two widows are quarrelling about the division of his 1/6 share.
3. After this Appeal No. 232 of 1909 was filed in this Court by the deceased, 5th defendant, he seems to have put in an application (Civil Miscellaneous Petition No. 1277 of 1909) in this Court for the continuance of the Receiver appointed by the lower Court till the disposal of the appeal. Notice was given to the parties representing the other two shares and they raised objections to the petition. The late Mr. Justice Krishnaswami Iyer passed the following order: 'I do not think that this is a fit case for a Receiver now. There is no dispute about the shares or the bulk of the properties. I do not think the successful parties should be kept out of enjoyment of their shares. Any re adjustment of the shares if the appeal succeeds must necessarily be small. I dismiss the petition.' Now this order of Krishnaswami Iyer, J., is clearly binding upon the parties and myself, so far as it goes. Any orders passed by the lower Court in connection with the Receiver's duties or the rights of the parties cannot prevail against the letter or the spirit of this order of Krishnaswami Iyer, J.
4. The present petition, as I said before, cannot be said to fall under any specific section or rule of the Civil Procedure Code. Order XL, Rules 1 to 4, prescribe the procedure as regards the appointment, duties and remuneration of Receivers and the Court's power to direct the Receiver's properties to be attached and sold when the Receiver makes default in the performance of his duties and such like matters. There is no specific provision made in Order XL for the discharge or removal of a Receiver. There is also no provision in the Code allowing appeals in respect of orders of discharge and removal of Receivers though there is a provision [see Order XLIII, Rule 1, Clause (s)] for an appeal against an order under Rule 1 or Rule 4 of Order XL, i.e., orders appointing Receivers and orders attaching and selling properties of Receivers and similar orders. See Janaki Ammal v. Narayanaswami Iyer 18 M.L.J. 589.
5. Orders discharging or removing Receivers and giving other necessary directions to Receivers must, therefore, come under the general powers of Courts, now expressly mentioned as existing in Courts by Section 151 of new Code. In Woodroffe's Book on Receivers, it is said (page 269, Section 30): 'The power to terminate flows naturally and as a necessary sequence from the power to create. The power of the Courts to remove or discharge a Receiver whom it has appointed may be exercised at any stage of the litigation. It is a necessary adjunct of the power of appointment and is exercised as an incident to, or consequence of, that power; the authority to call such officer into being necessarily implying the authority to terminate his functions when their exercise is no longer necessary, or to remove the incumbent for an abuse of those functions or for other cause shown' or 'because of the necessity of the appointment having ceased to exist.' I take it, therefore, that the present petition is put in for the exercise of the inherent powers of the Court, though it does not come under any particular section or rule in the Code. I may, however, suggest that the Procedure Committee might take this matter into consideration and frame rules in respect of the discharge and removal of Receivers and in respect of the powers of the Court to give directions to Receivers when particular contingencies occur. A rule might also be framed that when a Receiver has been appointed by a lower Court in a suit and an appeal is pending from that decree, the Appellate Court might treat the Receiver as appointed by itself and give directions to him in the conduct of his duties. The present petition put in by the owners of one of the three shares in the properties is supported by the owner of another 1/3 share and also by the owner of one moiety of the remaining 1/3rd share, that is, the plaintiff, at whose instance the Receiver was originally appointed. Even as regards the owners of the other moiety of the 1/3rd share, one of the widows who alleges that she owns a share in that moiety supports this petition. It is only the widow who is alleged to be the owner of a very small fractional share that is opposing this petition. One of the objections raised by this small fractional sharer is that this Court as an Appellate Court has no jurisdiction to entertain any objection in connection with the Receiver's duties just now. I cannot uphold this contention. The deceased 5th defendant, under whom this fractional sharer claims, himself treated this Court as competent to pass orders in connection with the receivership as he applied in Civil Miscellaneous Petition No. 2177 of 1909 for an order relating to the receivership and Krishnaswami Iyer, J., passed such an order. Section 107 of the Code (old Section 582) gives the Appellate Court all the powers of the Court of Original Jurisdiction. The suit and all the matters connected with the litigation are now before this Court and this Court has the power to pass all the necessary and convenient orders. See Ramanadhan Chetty v. Narayanan Chetty 14 M.L.J. 321; Sankara Bhatta v. Subraya Bhatta 17 M.L.J. 437 and Hukam Chand Boid v. Kamalanand Singh 3 C.L.J. 67. The case in Chenna Reddi v. Peddaobi Reddi 6 M.L.T. 130 overruling Ramanadhan Chetti v. Narayanan Chetty 5 B. 45 does not affect the general rule which is expressly approved at the bottom of page 419 in Chenna Reddi v. Peddaobi Reddi 6 M.L.T. 130. The general rule gives way, of course, when the statute itself provides for orders being passed on applications by the lower Court (as in applications for review) notwithstanding the filing of an appeal, and that is the only ground on which Ramanadhan Chetti v. Narayanan Chetty 14 M.L.J. 321 was overruled by Chenna Reddi v. Peddaobi Reddi 6 M.L.T. 130 : 19 M.L.J. 388. The preliminary objection is, therefore, overruled.
6. As Krishnaswami Iyer, J., has remarked, this is not a fit case for the existence of a Receiver, so far as regards the properties about which there is no dispute worth the name and the successful parties should not be kept any longer out of enjoyment of such properties, which have fallen to their respective shares. Any re-adjustment of the shares even if the appeal succeeds must, necessarily be small. It is admitted that at least Rs. 40,000 out of the income is in the custody of the Court and that is amply sufficient for any such re-adjustment, as that money along with the respective shares of the parties is security for the carrying out of the small re-adjustments which may be found necessary at the end. The objections of the fractional sharer, who is one of the representatives of the deceased appellant, are most of them frivolous and I overrule them. The prayer in the petition to put the respective sharers in possession of the respective plots in lists A, B and C, after discharging the Receiver from his duties and removing him from possession in respect of those plots, looks as if it was a prayer for execution of a portion of the decree of the lower Court. A prayer for execution cannot be made to the Appellate Court direct. See Mithibai v. Limji Nowroji Banaji 5 B.k 45. I will, therefore, treat it as a prayer for appointment of first petitioner as Receiver of the lands in list A discharging the existing Receiver so far as those lands are concerned. In the result, I direct that the Receiver be discharged as regards the following lands:
(a) Lands in list A except the lands in respect of which objections as to the division are pending in the lower Court and which are referred to in the objection petition put in by the 5th defendant to the lower Court in regard to certain punja lands and certain items of nanja lands in Nochukudi Village.
(b) Lands in list C except those to which objections are pending in the lower Court as above.
7. The remaining 1/3rd share in list B, about which the plaintiff and the widows of the 5th defendant are having a triangular quarrel, will continue to remain with the Receiver as also the properties not comprised in the lists A, B and C and the properties excepted out of the lists A, B and C as above. The 6th defendant is appointed Receiver as regards the properties in the C list with the exception already mentioned. The present Receiver will put the new Receivers into possession of the respective properties of which they have been appointed Receivers. He will also put the new Receivers in possession of not less than 75 per cent. in value of the ploughing cattle and other agricultural implements, etc., appurtenant to the A list and C list.
8. A copy of this order shall be served upon the Receiver by the petitioners. The Receiver and all parties shall be at liberty to apply to this Court as regards the future remuneration of the Receiver after he delivers possession of the properties ordered to be delivered to the new Receivers and all other matters connected with the receivership. They can also apply to the lower Court for payment of moneys out of sums remaining in Court for the discharge of common debts and the lower Court (it must be presumed) will pass the necessary orders on those petitions so far as is allowed by law. There will be no order as to costs of this petition. The party appointed Receiver will enjoy and appropriate the profits, but only after submission of proper quarterly accounts, the first of such accounts to be submitted within one month after taking possession of the property from the present Receiver.