P.V. Eswara Iyer vs Sankunni Nair

Viswanatha Sastri, J.—These civil revision petitions raise a question of law of some importance and that is whether an appeal is maintainable

against an interlocutory order appointing a receiver in an original proceeding other than a suit, when the final order in the original proceeding is itself

not open to appeal. The landlord, here petitioner, applied in O. p. Nos. 139 to 141 of 1948 on the file of the Court of the District Munsif of

Palghat u/s 13(2) and (3), Malabar Tenancy Act, for fixing the fair rent in respect of the holding of the tenant, here respondent, and for a direction

that he should pay one year''s fair rent in advance or furnish security for the rent. There were interlocutory applications filed for the appointment of

a receiver in case the tenant defaulted to pay the rent or furnish security. By his order dated 9-4-1949, the District Munsif directed the tenant to

furnish security for Kanni rent on or before 20-4-1949, but the tenant failed to comply with this order. On the landlord''s applications I. A. Nos.

2618 to 2620 of 1948 in O. P. Nos. 139 to 141 of 1948 praying for the appointment of a receiver for the holdings of the tenant the District

Munsif appointed a receiver. The tenant filed C. M. A. nOS. 11 to 13 of 1949 in the Court of the Subordinate Judge of South Malabar at Palghat,

against the orders of the District Munsif appointing a receiver. The appellate Court reversed the orders of the Munsif on the ground that there were

no sufficient grounds for dispossessing the tenant by the appointment of a receiver. The landlord has preferred these civil revision petitions against

the orders of the appellate Court.

Mr. C. S. Swaminathan, the learned advocate for the petitioner, contends that the appeals referred by the tenant to the Court of the Subordinate

Judge were incompetent and that the orders passed by the appellate Court were without jurisdiction. Both sides relied on Section 50, Malabar

Tenancy Act (XIV [14] of 1930) which runs as follows :

5O. (1) The procedure provided as regards suits in the Code of Civil Procedure, 1908, including Orders XXXVIII, XXXIX and XL of the first

schedule, shall be followed as far as it can be made applicable in all proceedings relating to applications under this Act.

(2) Appeals shall lie from orders made under Sections 12, 23, 25, 30, 31, 34, 35 and 36 as if they were decrees in suits.

The argument of the petitioner is that an order u/s 13 is not made appealable by Section 60 (2) and where the final order on the main proceeding

itself is not open to appeal, an inter-locutory order by way of appointment of a receiver, made during the pendency of that proceeding, is not

appealable. For the respondent it is contended that u/s 60 (1) of the Act provisions of Order 40, Rule 1, Civil P. O. are expressly made applicable

to proceedings u/s 13 of the Act, and the landlord have invoked the provisions of Order 40, Rule 1, Civil P. C., by applying for the appointment of

a receiver. The order made on his application was one made under Order 40, Rule 1, Civil P. C., and was, therefore, open to appeal under O. 43,

Rule 1, Sub-clause (s), Civil P. C. No decision exactly in point was cited by the learned counsel, but some decisions were relied upon by way of

analogy.

The petitioner relied upon Ramanayya v. Kotayya, 57 M. L. J. 398 : A. I. R. 1930 Mad. 75 where this Court held that no appeal lay under

Clause 15 of the Letters Patent against an order of a single Judge refusing to grant leave to appeal from his judgment in a second appeal. He also

referred to In re Veerasami Padayachi, I. L. R. (1938) Mad. 633 : A. I. R. 1938 Mad. 399 where it was held that an order of a single Judge

refusing to review his judgment in a second appeal was not appealable under Clause 15 of the Letters Patent. I might also refer to the recent

decision in K.M.S. Kumarappa Chettiar Vs. The Official Receiver, where the decisions in Ramanayya v. Kotayya, 57 M. L. J. 398 : AIR 1930

Mad. 75 and in In Re: Magalam Govinda Rao, were followed and an order refusing leave to appeal in a second appeal was held not to be

appealable under Clause 15 of the Letters Patent. The ratio decidendi of these cases was that an order granting or refusing leave was part of the

decision on the merits of the second appeal itself and not an independent order apart from the decision. Since the decision on the second appeal

was open to a farther appeal only with leave, an order refusing leave which was part of the decision itself could not be treated as an independent

order appealable without leave. I consider that these decisions have no application because the order appointing a receiver was a judicial order

having a separate and independent existence of its own, apart from the order of the original petitions filed u/s 13, Malabar Tenancy Act. In my

opinion, the merits of the order appointing a receiver could be canvassed on appeal independently of the merits of any final decision or order that

might be rendered on the main petition. The petitioner also relied on the decision in Thomas Souza v. Gulam Moideen Beevi, 26 Mad. 438 and

Kanai Lal v. Jatindra Nath, 45 Cal. 519: A. I. r. 1918 Cal. 925 to the effect that an order in execution of a decree passed u/s 9, Specific Relief

Act, was not appealable. But this conclusion was based on the express language of Section 9 that ""no appeal shall lie from any order or decree

passed in any suit."" The word ""suit"" was construed as being wide enough to include execution proceedings also.

These decisions do not lead to the conclusion that merely because a final order in an original proceeding is not open to appeal interlocutory

orders made during the pendency of the proceeding become unappealable. It is, of course, a trite proposition that an appeal lies only if it is granted

by statute. The Legislature can provide for a right of appeal against an interlocutory order in a proceeding even though the final order on that

proceeding is not made appealable, or it might provide that an interlocutory order shall be open to appeal only in cases where an appeal would

have lain from the final order in the main proceeding. An example of the former class of cases would be found in Section 96 read with Order 23,

Rule 3 and Order 43, Rule 1, Clause (m), Civil P. C., under which an order recording a compromise is appealable, but not a decree passed on the

compromise. See Govindaswami v. Kaliaperumal, A.I.R.1921 Mad. 696: 66 I. C. 837. An example of the latter class of cases is found in Order

43, Rule 1, Clause (u) read with Order 41, Rule 23, Civil P. C. An intermediate position is envisaged in Section 102, Civil P. C., which allows one

appeal but not a second appeal from an order in execution of a Small Cause decree when the decree is under execution on the original side of the

Court, if the value of the subject-matter of the suit does not exceed Rs. 500. The Small Cause decree itself is not open to appeal, but an order in

execution of the decree made on the original side is open to appeal. I am, therefore, unable to accept the broad proposition for which the petitioner

contends. In my opinion, it all depends on what provision has been made by the Legislature by way of a grant of a right of appeal in each particular

case.

In the present case, Section 50 (2), Malabar Tenancy Act, does not include an order u/s 13 in the category of appealable orders. The orders

specified in Section 50 (2) are made appealable as if they were decrees, that is to say, they would be open to an appeal and a second appeal

conformably to the provisions of Sections 96 and 100, Civil P. C. The Legislature has in Section 50 (1), Malabar Tenancy Act expressly made

Order 40, Civil P. C., applicable to proceedings under the Act. Order 43, Rule 1, Clause (s), Civil P. C., grants a right of appeal against an order

appointing or refusing to appoint a receiver under Order 40, Rule 1. When Order 40, Rule 1, Civil P. C., was incorporated in the Malabar

Tenancy Act as part of the procedure applicable to proceedings under the Act, it carried with it the right of appeal given by Order 43, Rule 1,

Clause (s), Civil P. C. There is nothing in the Malabar Tenancy Act restricting or displacing the right of appeal which is attracted by the

incorporation of Order 40, Rule 1, Civil P. C., in Section 60, Clause (1) of the Act. It must be remembered that the application for the

appointment of a receiver was made to an ordinary civil Court subject to the appellate jurisdiction of the District Court and the High Court and not

to a special tribunal or judicial officer functioning as persona designata. The Court was here appealed to as one of the ordinary Courts of the

country. The effect of Section 13, Malabar Tenancy Act was merely to invest the Court with jurisdiction over the new subject-matter dealt with by

that section. The proceeding was a judicial proceeding and the order appointing a receiver was a judicial determination under Order 40, Rule 1,

Civil P. C. If the Court of the District Munsif had all the powers and jurisdiction conferred by Order 40, Rule 1 of the Code, in the matter of

appointing a receiver and dispossessing the respondent--and this is the true position according to both sides --it is not possible to hold that the

decision of the District Munsif was not open to appeal, which was attracted to every order made under Order 40, Rule 1 by virtue of Order 43,

Rule 1, Clause (s), Civil P. C. The general principle applicable to cases of this kind was thus stated by Viscount Haldane, Lord Chancellor in

National Telephone Co. v. Post Master General (No. 2), (1913) A. C. 546 : 82 L. J. K. B. 1197:

When a question is stated to be referred to an established Court without more, it imports that the ordinary incidents of the procedure of that Court

are to attach, and also that any general right of appeal from its decisions likewise attaches.

It may be that a particular case is taken out of this general principle by special enactment. There is none such in the present case. On the other

hand, the procedure prescribed by the CPC is expressly made applicable by Section 50 (1), Malabar Tenancy Act to proceedings under the Act,

and there is no prohibition of an appeal. In AIR 1948 12 (Privy Council) Lord Simonds delivering the judgment of the Judicial Committee held that

:

Where a legal right is in dispute and the ordinary Courts of the country are seized of such disputes, the Courts are governed by the ordinary rules

of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special

statute which does not in terms confer a right of appeal.

To the same effect were the decisions of the Board in Secretary of State v. Chelikani Rama Row, 39 Mad. 617 : A. I. R. 1916 P. C. 21 and AIR

1936 93 (Privy Council) . In view of what I consider to be the clear pronouncement of the Judicial Committee, I do not propose to discuss the

decisions in Chandrawati v. Jagannatha Singh, A. I. R. 1925 Lah. 489 : 90 I. C. 611 and Cheria Kunhi Shridevi Amma Tirumumpu and Others

Vs. Valia Narayan Tirumumpu, relied upon by the respondent.

On the merits it is unnecessary to interfere with the Order of the lower appellate Court. The receiver who has been in possession has

presumably deposited the rents in Court and the petitioner has been paid the rents in arrear or at any rate the bulk of such arrears. I do not agree

with all the reasons given by the lower appellate Court for reversing the order of the trial Court. Having regard to the subsequent course of events

it is unnecessary to disturb the orders of lower appellate Court. If the respondent after he is put in possession of the property by the receiver who

has been continued by an interim order of this Court commits default in payment of the rent or in furnishing security therefore within such time as

the Court thinks fit to allow, it will be open to the petitioner to apply for the appointment of a receiver and such an application should be dealt with

on its own merits by the trial Court. The civil revision petitions are dismissed but, in the circumstances, without costs.