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Sahebjada Faridun Shiko on Behalf of Minor, Jahan Arrah Begum Vs. Fakir Muhammad and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal786(2),24Ind.Cas.862
AppellantSahebjada Faridun Shiko on Behalf of Minor, Jahan Arrah Begum
RespondentFakir Muhammad and ors.
Excerpt:
civil procedure code (act v of 1908), order xl, rules 1, 4, order xliii, rule 1, clause (s) - court refusing to remove receiver--appeal--jurisdiction--pleadings. - .....in the exercise of our appellate or of our revisional jurisdiction, three orders made by the district judge in the matter of wakf estate, of which a receiver had been previously appointed on the 18th june 1912. by the first of these orders, the district judge refused an application for removal of the receiver. it is plain that this order is not liable to be challenged by way of an appeal to this court. under order xliii, rule 1, clause (s) of the code of civil procedure, an appeal lies from an order made under rule 1 or rule 4 of order xl. the order under rule 1 may be an order for appointing a receiver of any property, or removing any person from the possession or custody of such property, or committing the same to the possession, custody or management of the receiver, or.....
Judgment:

1. We are invited to set aside, in the exercise of our appellate or of our revisional jurisdiction, three orders made by the District Judge in the matter of wakf estate, of which a Receiver had been previously appointed on the 18th June 1912. By the first of these orders, the District Judge refused an application for removal of the Receiver. It is plain that this order is not liable to be challenged by way of an appeal to this Court. Under Order XLIII, Rule 1, Clause (s) of the Code of Civil Procedure, an appeal lies from an order made under Rule 1 or Rule 4 of Order XL. The order under Rule 1 may be an order for appointing a Receiver of any property, or removing any person from the possession or custody of such property, or committing the same to the possession, custody or management of the Receiver, or conferring upon the Receiver powers for the management, protection, preservation and improvement' of the property. Rule 4 deals with the enforcement -of a Receiver's duties. The order refusing to remove the Receiver is plainly not an order under Rule 1 or Rule 4 of Order XL, and is consequently not appealable.

2. We have next boon invited to set aside the order under Section 115 of the Code. But, in our opinion, no ground has been made out for the exercise of our revisional powers in this case. It was contended before the District Judge that the Receiver should be removed because a connected suit had been dismissed. It has not been made out, however, that the Receiver was appointed to hold office only during the pendency of that suit. The dismissal of the other suit consequently affords no reason for the removal of the Receiver.

3. It has been finally argued that the order of appointment of the Receiver is ultra vires, and that in fact the Court had no jurisdiction to appoint a Receiver of the wakf estate. We are not in a position to test the validity of this argument. The point does not appear to have been urged before the District Judge and its determination must depend upon an examination of the circumstances under which the Receiver was appointed. It is consequently not open to the petitioner to invite this Court to deal with the question of want of jurisdiction raised for the first time in this appeal.

4. As regards the other two orders of the District Judge, they are clearly of an interlocutory character and are not liable to be challenged by way of appeal, nor has any reason been assigned why we should interfere with them in the exercise of our revisional jurisdiction.

5. The appeal is consequently dismissed with costs which will, be paid by the appellant psrsonally and not out of the wakf estate. We assess the hearing fee at one gold mohur.


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