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Raja Shyam Lal Singh Vs. Raj Kumar Thakur Madhusudan Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal253
AppellantRaja Shyam Lal Singh
RespondentRaj Kumar Thakur Madhusudan Singh
Cases ReferredSrinivas Prosad Singh v. Kesho Prosad Singh
Excerpt:
- .....the plaintiff's application for the appointment of a receiver and states that the plaintiff is appointed receiver of the disputed property during the pendency of the suit or until further orders but states as a condition that he would have to give security to the extent of rs. 10,000 to the satisfaction of the court within three weeks from the date of the order. it goes on to state that when appointed the receiver will have to manage the properties under the direction of the court and on certain terms. the defendant no. 1 has appealed to this court.2. a preliminary objection has been urged on behalf of the plaintiff-respondent as regards the competency of the appeal. it has been urged that the appointment of the plaintiff as receiver was conditional on his' furnishing security and.....
Judgment:

Mukerji, J.

1. This appeal is directed against an order passed by the Subordinate Judge of Asansole on the 15th June 1925. The order purports to grant the plaintiff's application for the appointment of a Receiver and states that the plaintiff is appointed Receiver of the disputed property during the pendency of the suit or until further orders but states as a condition that he would have to give security to the extent of Rs. 10,000 to the satisfaction of the Court within three weeks from the date of the order. It goes on to state that when appointed the Receiver will have to manage the properties under the direction of the Court and on certain terms. The Defendant No. 1 has appealed to this Court.

2. A preliminary objection has been urged on behalf of the plaintiff-respondent as regards the competency of the appeal. It has been urged that the appointment of the plaintiff as Receiver was conditional on his' furnishing security and that inasmuch as the security called for has not yet been furnished there was no complete order appointing the Receiver within the meaning of Order 40, Rule 1, Sub-rule (1), Clause (a) of the Code of Civil Procedure and that, therefore, the order to which I have referred is not an appealable one. In support of this preliminary objection reliance has been placed upon a number of decisions to which I shall presently refer, specially as there are certain decisions of this Court which I feel constrained to follow and as to the correctness of which I entertain considerable doubt.

3. It is necessary to state just a few further facts. The order to which I have referred was passed, as I have stated, on the 15th June 1925. On the 7th July 1925 the learned Subordinate Judge recorded an order to the effect that on the day before the plaintiff had applied for taking landed properties as security or in the alternative for granting him 15 days time to furnish cash security and that on the day on which the said order was passed the plaintiff had offered certain landed properties as security. By this order the learned Subordinate Judge adjourned the matter to the 17th July 1925 for hearing. Thereafter on the 9th July 1925, Defendant No. 1, who is the appellant before us, appears to have filed a, petition for the stay of the appointment of the plaintiff as Receiver and afterwards, on the application of both parties, the case was adjourned sine die and no further order appears to have been passed in connexion with the appointment of the Receiver.

4. The respondent relies upon certain decisions, the first one of which is the decision of this Court in the case of Upendra Nath Nag Chaudhuri v. Bhupendra Nath Nag Chaudhuri [1910] 13 C.L.J. 157. That was a case in which the order had been passed by the Court below in these terms:

I think the whole of the property in suit will be better managed and the interest of all the parties will be better served if the property in suit foe placed in the hands of a competent Receiver.

5. It was against this order that an appeal was preferred to this Court and a preliminary objection as to the competency of this appeal was upheld, the learned Judges observing in their judgment that no final order bad been passed appointing a Receiver in the case. The learned Judges went on to observe in their judgment that subsequent to the passing of the order from which an appeal had been preferred the office of the Receiver was offered to one Rash Behari Mandal who declined to accept the office, and thereafter the appointment of Rash : Behari was cancelled and after that one Nakuleswar Bose was appointed Receiver. The learned Judges held that the order that was appealable was the order by which Nakuleswar was appointed Receiver but that no appeal had been preferred from that order.

6. The case is clearly distinguishable from the present one inasmuch as the order that had been appealed against in that case was simply one in which the learned Judge of the Court below had merely made certain observations as to the propriety of a competent Receiver being appointed and did not in fact appoint any Receiver thereby. The next case relied on is that of the Bombay High Court in Narbadasankar v. Kevaldas Raghunath Das [1910] C.L.J. 157. The order against which an appeal was preferred in that case ran in these words:

I hold that a proper person should be appointed Receiver. The parties will be further heard on the point as to who should be appointed Receiver.

7. It is quite clear that by this order no appointment of a Receiver had actually been made and the learned Judges of the Bombay High Court were of opinion that no appeal lay from that order. A decision of the Allahabad High Court has also been placed before us. That is the decision in the case of Ramji v. Koman Das [1914] 13 A.L.J. 79. That was a case where an appeal was preferred from an order which stated that the Court allowed an application for the appointment of a Receiver provisionally and by which the Court called upon all the parties to put in application showing their claims regarding the person or the power of the Receiver and as to other matters. That again was not an order which can be treated as an order appointing a Receiver which comes within the purview of Clause (a), Sub-rule (1), Rule 1 of Order 40 and it was held that no appeal lay from that order. These cases are authorities for the view that until a particular person has been appointed as Receiver, there is no effective order appointing a Receiver, and the mere expression of an opinion as to the propriety of an appointment of some person at a future date is not an order appointing a Receiver within the meaning of Order 40, Rule 1, Sub-rule (1), Clause (a); or to put in another way, that

the law gives a right of appeal only against an order appointing a Receiver and not against an expression of the Court below of its intention to appoint.

8. This, however, is not the question for our consideration in the present case, for a particular person, namely, the plaintiff, has been appointed by the learned Judge in the present case. It may be observed that this view has been consistently maintained in the more recent decisions of this Court and the Allahabad High Court : vide Muhammad Askari v. Niskar Husain [1919] 42 All. 227. There is, as far as I am aware, no decision of the Bombay High Court to the contrary. The Madras High Court has adopted the contrary view in a Full Bench decision by a majority in Palaniappa Chetty v. Palaniappa Chetty [1916] 40 Mad. 18, and the Patna High Court has adopted that view in the case of Govinda Ram v. Ganesh Ram A.I.R. 1922 Patna 577 and this contrary view seems to have been adopted by the Lahore High Court as well.

9. The next decision to which our attention has been drawn is the case of Srinivas Prosad Singh v. Kesho Prosad Singh [1911] 14 C.L.J. 489. In this case a gentleman Mr. S.P. Sen Gupta was appointed Receiver to take possession of certain jewelleries, etc., and the order was that he was to furnish security for a certain amount. The Court after passing the said order passed another order directing the case to be put up for further orders on a subsequent date. This Court in dealing with the question as to whether an appeal lay from the order appointing a Receiver with a direction to furnish security held that if the appointment is conditional on the furnishing of security, the giving of security is a condition precedent and that there is no effective appointment till the security has been given. The learned Judges were of opinion that so long |as the security demanded was not furnished there was no appointment of the Receiver within the meaning of Rule 1 of Order 40 and that it was only when the appointment became an operative one by reason of the security demanded from the Receiver being furnished that an appeal would lie from the order which finally approved of his appointment. This decision appears to have been followed in later decisions of this Court, namely in Appeal from Original Order No. 327 of 1921, decided on the 2nd April 1924.

10. Apart from authorities it seems to me plain upon the reading of the provisions of Order 40, Rule 1(1)(a) and Rule 3(a) of the Code that there are three stages in the matter of the appointment of a Receiver. The first is the stage at which the Court pronounces its opinion as to the propriety of making the appointment of a Receiver; the second is the stage at which the appointment is made; and the third is the final stage, when the security, if any, ordered by the Court being furnished the person or persons appointed are put in possession of the property as Receiver or Receivers. Speaking for myself I am not prepared to hold that after an order has been made appointing a particular person as Receiver subject to his giving security, and during the time that the security is not furnished the order made by the Court, though it remains in abeyance in the sense that the Receiver is not clothed with his powers and duties as such, is any the less a judicial order open to appeal. With the greatest respect to the learned Judges who decided the case of Srinivas Prosad Singh v. Kesho Prosad Singh [1911] 14 C.L.J. 489. I am not prepared to assent to the view that in the case of an appeal from an order of this nature 'no appeal would lie till an appointment has been made, which but for the appeal is bound to be operative.' I do not see that the Code, in providing for a right of appeal, contemplates any distinction of this character. The view I take receives support from a consideration of form 6 of App. E to the Code which, to my mind, shows that the judicial part of the order is over when such an order is passed and a right accrues to the person with the passing of the order which is embodied in the writ issued to him in that form. The authority of the decision in the case of Srinivas Prosad Singh v. Kesho Prosad Singh [1911] 14 C.L.J. 489 in so far as this particular matter is concerned does not appear to have been followed in any of the other High Courts, and the learned Judge, who was in the minority in the case of Palaniappa Chetty v. Palaniappa Chetty [1916] 40 Mad. 18 and who approved of this decision in other respects against the view of the majority, was also of opinion that the case had gone too far on this question as to the tentative character of an order of this nature.

11. The two cases of this Court, namely, the one of Srinivas Prosad Singh v. Kesho Prosad Singh [1911] 14 C.L.J. 489 and the unreported decision of this Court to which I have referred, however, are not in any way distinguishable from the present case; and although personally lam not in agreement with the views taken in those cases I am not at present of opinion that it is necessary that there should be a reference to a Full Bench. I must therefore follow the decisions aforesaid and hold that in the present case no appeal lies from the order passed by the Subordinate Judge on the 15th June 1925.

12. The appeal must be held to be premature and must accordingly be dismissed with costs. The hearing fee is assessed at two gold mohurs.

Greaves, J.

13. I agree.


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