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Makhan Lal Adya Vs. Boidya Nath Adya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal681
AppellantMakhan Lal Adya
RespondentBoidya Nath Adya and ors.
Cases ReferredKirty Churn Mitter v. Aunath Nath Deb I.L.R.
Excerpt:
appeal - receiver, appointment of--apvealable order--jurisdiction, value for purposes of--civil procedure code (act xiv of 1882), sections 503, 505, 588 (24), and 589--bengal, north-western provinces, and assam civil courts act (xii of 1887), section 21--court fees act (vii of 1870), section 7, clause 4--suits valuation act (vii of 1887), sections 7, 8, and 11. - .....by him against his co-sharers in the court of the third subordinate judge of hughli. the suit was valued at rs. 4,200, but defendants urged in both the courts below, and stated in the affidavit upon which the rule no. 8 of 1890 was granted, that the value of the property claimed was considerably over rs. 5,000, and the correctness of this statement is not questioned before us.2. the subordinate judge rejected the application. on appeal by the plaintiff, the district judge has reversed the order of the subordinate judge, and held that a receiver should be appointed.3. against that decision the defendants have come up to this court by way of appeal and also by way of motion upon which the above mentioned rule no. 8 of 1890 has been granted. the other rule (no, 161 3 of 1889) was.....
Judgment:

Banerjee, J.

1. This appeal and these rules arise out of an application by one Makhan Lal Adya for the appointment of a Receiver to take charge of certain properties, moveable and immoveable, which form the subject-matter of a suit for partition instituted by him against his co-sharers in the Court of the Third Subordinate Judge of Hughli. The suit was valued at Rs. 4,200, but defendants urged in both the Courts below, and stated in the affidavit upon which the Rule No. 8 of 1890 was granted, that the value of the property claimed was considerably over Rs. 5,000, and the correctness of this statement is not questioned before us.

2. The Subordinate Judge rejected the application. On appeal by the plaintiff, the District Judge has reversed the order of the Subordinate Judge, and held that a Receiver should be appointed.

3. Against that decision the defendants have come up to this Court by way of appeal and also by way of motion upon which the above mentioned Rule No. 8 of 1890 has been granted. The other Rule (No, 161 3 of 1889) was obtained on an application for stay of proceedings pending the appeal. In their appeal the defendants contend that no appeal lies against an order rejecting an application for the appointment of a Receiver, such an order not being an order under Section 503 of the Code of Civil Procedure; that the so-called appeal to the District Judge should be regarded as a fresh application to him for a Receiver, which he was competent to entertain, having regard to the provisions of Section 505 of the Code; that the Judge's order must consequently be regarded as an original order under Section 503 for the appointment of a Receiver, and an appeal lies against it to this Court under Section 588; and that, as the order is bad on the merits, no sufficient case being made out for a Receiver, it should be set aside. In the Rule (No. 8 of 1890) it is contended that even if it be conceded that an appeal lies against an order rejecting an application for a Receiver, the appeal in this case lay to this Court according to Section 589 of the Code and Section 21 of the Bengal, North-Western Provinces, and Assam Civil Courts Act, as the value of the subject-matter of the suit was over Rs. 5,000; and that the decision of the District Judge was therefore passed without jurisdiction and should be set aside. On the other side it is argued that an appeal does lie against an order refusing an application for a Receiver; that the appeal in this case properly lay to the District Judge, the suit having been valued at less than Rs. 5,000; and that the order of the Judge was final under Section 588 of the Code.

4. Now the question whether an appeal lies from an order rejecting an application for a Receiver is, we think, concluded by authority. It was held in the case of Gossain Dulmir Puri v. Tekait Hetnarain 6 C.L.R. 467 that such an appeal does lie, and the same view was taken by a Full Bench of the Madras High Court in the case of Venkatasami v. Stridavamma I.L.R. 10 Mad. 179. That being so, the order of the District Judge was an order passed in appeal, and no further appeal lies from it under Section 588 of the Code, The appeal to this Court must therefore fail.

5. But though an appeal lay against the order of the Subordinate Judge refusing the plaintiff's application for a Receiver, we think that appeal lay to this Court and not to the District Judge.

6. Section 589 of the Code of Civil Procedure provides that an appeal from an order, when such appeal is allowed by Section 588, shall lie to the Court to which an appeal would lie from the decree in the suit in relation to which such order is made. And the Court to which an appeal lies from a decree of a Subordinate Judge in a suit is, under Section 21 of Act XII of 1887, the High Court where the value of the suit is above Rs. 5,000, and the District Judge's Court in other cases. Now, though the expression 'value of the suit' is not defined in Act XII of 1887, we do not think it means the amount at which the plaintiff chooses to value his suit. The Court-fees Act (Section 7, Clause 4) provides that for the purpose of determining the amount of Court-fee payable, the value of certain classes of suits should be taken to be the amount at which the plaintiff values the relief sought. But we do not think the Legislature ever intended to leave it to the plaintiff to choose the Court in which he should bring his suit for possession or partition of property by assigning an arbitrary value to the subject-matter of the suit. The provisions of the Suits Valuation Act (Act VII of 1887, Sections 7, 8 and 11) clearly indicate that that is not the intention of the Legislature. The present case does not come within any of the classes of cases in which, according to that Act, the Court-fee valuation and valuation for purposes of jurisdiction are declared to be identical. In the absence of any rules made under the last-mentioned Act, we think the correct rule to follow is that indicated in the observation of Garth, C.J., in Kirty Churn Mitter v. Aunath Nath Deb I.L.R. 8 Cal. 757, that for purposes of jurisdiction in partition suits we should be guided by the value of the property in suit. Now the value of the plaintiff's share in this case is unquestionably over Rs. 5,000, being not less than Rs. 20,000; and the valuation in the plaint was we think unwarrantably low. That being so, the appeal in this case lay to this Court and not to the Judge, and the order of the District Judge must therefore be set aside as passed without jurisdiction. We may add that the learned District Judge's order is not in our opinion a proper order on the merits of the case, as no sufficient ground for the appointment of a Receiver was made out.

7. The result is that the appeal must be dismissed, but the rule (No. 8 of 1890) made absolute. Rule No. 1613 of 1889, which was obtained merely for stay of proceedings, will be discharged.

8. We make no order as to costs.


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