Ramaswami Naidu and Others vs Ayyalu Naidu

Krishnan, J.—This is an appeal against an order refusing to remove the 1st defendant from his position of receiver in a partition suit brought

against him and another.

A preliminary objection is taken to the maintainability of this appeal on the ground that no appeal lies under Order 43, Rule 1(s) of the Civil

Procedure Code. The Clause gives a right of appeal only against orders passed under Rules 1 and 4 of Order 40. It is contended first by the

appellant''s vakil that this is a case which would fall under Order 40, Rule 1(a) itself on the ground that they wanted not only to get the present

receiver removed but another man appointed in his place and he, therefore, contends that this a ease where the Court has refused to appoint a

receiver. We are unable to accept this contention, for till the present receiver is removed, there will be no scope for appointing another receiver in

his place and, therefore, the authority cited by him Munilal v. Jagannath (33 Ind.Cas. 735, which deal with a case of refusal to appoint a receiver

does not apply, Refusing to remove a receiver already appointed is quite different from refusing, to appoint a new receiver.

It was then contended that this application should be treated as one falling under Order 40, Rule 1(b). That Clause says; ""Remove any person

from the possession or custody of any property,"" and it is argued that, when the present receiver is removed,"" it would necessarily result in his

being removed from the possession or custody of the property in suit. That argument also we are unable to support as we think that the word

person"" in Clause (b) refers to a person other than a ""receiver, "" for Clause (a) shows that the property removed from the possession or custody

of the person referred to in Clause (b) is to be committed to the possession, custody or management of the ""receiver"" by Clause (e). We think that

it is impossible to bring this case under Order 40, Rule 1; and, of course, it does not fall under Order 40, Rule 4. Therefore, we must hold that no

appeal lies. We are fortified in this view by the rulings of the Calcutta High Court in 20 C.W.N. 789 and 24 I.C. 862. The appeal, therefore, fails

and is dismissed with costs.

It was then contended that we should interfere in revision with the order of the lower Court as the lower Court fell into a mistake in thinking that

the 1st defendant was not appointed a receiver but only a manager. There is no provision for appointing a manager under the Code. When a

manager is appointed, it is really another name for the appointment of a receiver under Order 40; and in this case the appointment was actually

made under Order 40, C.P. Code. We do not think that the lower Court fell into any error in thinking that the 1st defendant Was not, in fact, a

receiver appointed under the Code. There is no question of jurisdiction or of any acting with material irregularity in the exercise of jurisdiction

arising in this petition. This petition is, therefore, incompetent and must also be dismissed.