IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 209 of 2014

----- Against the order dated 22.05.2014 passed in Title (Partition) Suit no.21 of 2013 by the learned Civil Judge(Sr. Division)-I, Pakur

Abdul Hannan Sheikh, son of Late Mohammad Abdul Sahid Mondal @ Abdul Sahid Malal, r/o village Rashpur,P.S. Pakur(M),P.O. and District- Pakur. ….......Appellant.

-Versus-

• 1. Abdul Mannan Sheikh, son of Late Mohammad Abdul Sahid Mondal @ Abdul Sahid Mandal, r/o village-Rashpur, Pakur, P.S.Pakur(M), P.O. And district-Pakur at present residing at Barauni Refinery Township, Begusarai, P.O. and P.S.Begusarai, District-Begusarai(Bihar).
• 2. Farjan Bibi,D/o Late Mohammad Abdul Sahid Mandal @ Abdul Sahid Mandal and wife of Ajijul Sheikh, r/o village Narottampur, P.S. Pakur(M), P.O. and district-Pakur, Jharkand.
• 3. Rafejan Bibi, D/o Late Mohammad Abdul Sahid Mandal @ Abdul Sahid Mandal, and wife of Md. Hanif, r/o Kakuria More, Pratapganj, P.S. Samsherganj, P.O. and District-Murshidabad(W.B) ….......Respondents.

CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA

For the Appellant	: M/s. Rajeev Ranjan, Sr. Advocate and
	T.K.Mishra, Advocate
For the Respondents	: M/s. V.Shivnath, Sr. Advocate &
	Sudhakar Pandey, Advocate.
For the Caveater	: Mr. Rakesh Kumar, Advocate.

----- O R D E R

27/30.06.2016 The present appeal has been preferred impugning the order dated 22.05.2014 passed in Title Partition Suit no.21 of 2013 by the learned Civil Judge(Sr.Division)-I, Pakur whereby the prayer of the plaintiff/respondent for appointment of receiver, under Order 40 Rule 1 of Code of Civil Procedure, has been allowed.

2. The plaintiff/respondent had instituted the suit seeking declaration that the suit property was the joint property and a preliminary decree declaring that after excluding 1/8th share of the defendant no.2, the plaintiff and defendant have equal share in the suit property being double the share of defendant nos.3 and 4 and

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preparation of a final decree carving out 1/8th share in suit property separately in favour of defendant no.2 and out of the remaining property 2/6th share each be allotted to plaintiff and defendant no.1 and 1/6th share each to defendant nos.3 and 4. Prayer was also made for directing defendant no.1 to produce Books of accounts and accounts of profit of the Hotel, i.e. the suit property, with declaration that the plaintiff is entitled to receive the amount or share with interest in the profit of the Hotel business.

3. The appellant/defendant No.1, in his written statement denied that the suit property, i.e. Hotel Samrat, was a joint property. It is averred that the suit property exclusively belongs to the plaintiff/defendants 2 and 3 had no right, title or interest in the suit property.

4. During the pendency of the suit on 20.06.2013 the plaintiff filed the petition under Order 40 Rule 1 read with 151 C.P.C., for appointment of a receiver alleging that the suit property(Hotel) is a joint family business but the defendant is keeping the entire income of the Hotel and investing the earning from the joint family property for his own benefit and acquiring properties in his own name or in the name of his son and is not maintaining proper account of the business of the Hotel neither is he giving any share to the plaintiff. That since the suit for partition has been filed it would be just and proper to appoint a receiver for managing the suit property, so that the accounts of business may be properly maintained and the interest of the plaintiff be safeguarded. That if receiver is not appointed the plaintiff shall suffer irreparable loss and injury.

5. The appellant/defendant no.1 filed his rejoinder stating that the suit property known as Hotel Samrat, is his exclusive property which has been established and developed by dint of his hard labour and income. That the plaintiff or defendant nos.2 to 4 have no unity of title nor there is any document to show that the suit property is in jointness. That the licence, rent receipts, bank loans, telephone and electricity bills and other papers pertaining to the suit property stand in the name of defendant no.1 and the plaintiff in conspiracy with defendant nos.3 and 4 has filed the suit with an oblique motive out of greed to grab the property by ousting him.

6. The learned court below on the basis of the pleading and documents of the parties by order dated 22.05.2014 allowed the application under Order 40 Rule 1 for appointment of receiver and directed the parties to suggest the name of the receiver.

7. Mr. V.Shivnath, learned senior counsel, on behalf of the respondent has contended that the appeal is not maintainable as the learned court below by the impugned order has not appointed any 'particular person' as a receiver rather it has just allowed the prayer for appointment of receiver and the next date has been fixed for appointment of receiver. Learned counsel has referred to the provisions of Order 40 Rue 1 and contended that since no particular person has been appointed as receiver neither the possession of the appellant has been disturbed so the order has not been passed in terms of the provision of Order 40 Rule (1) (a), consequently the order is not appealable under Order 43(i)(s).

Learned counsel has relied on the decision reported in (1974) 2 SCC, 393, and submitted that Hon'ble Supreme Court has held that no appeal can lie against mere finding. It is urged that in the instant case the trial court has only given a finding that the plaintiff has made out a case for appointment of a receiver but the order has not attained finality since there has not been appointment of any particular person as a receiver accordingly appeal is not maintainable in view of the observation made by the Supreme Court in paras 16 and 17 of the above mentioned decision.

It is canvassed that the Supreme Court in the decision reported in AIR 1981 SC 1786 , while tracing the history, leading to the enactment of Section 104 in the Civil Procedure Code of 1908, has held that in the Civil Procedure Code of 1877, Section 588 was the corresponding Section to Order 43 Rule 1 of the Code of 1908. That Section 591 of the Code of 1877 clearly provided that except for the orders as enumerated under Clause (a) to (t) of Section 588 no further appeal would lie from any order passed by any court in exercise of its original or appellate jurisdiction. It is submitted that the Apex Court while taking cognizance of the various judgments passed by different High Courts regarding the interpretation of Section 588 (old Code) has discussed the applicability of Section 104 read with Order 43 Rule 1 and held that it applies to the proceedings before the trial Judge of the High Court. It is argued that under Order 43 Rule 1(s) the appeal can lie only when the petition under Order 40 Rule 1 for appointment of receiver is rejected as has been held by Hon'ble Supreme Court in the decision reported in AIR 1981 SC 1786 and (1974) 2 SCC 393.

Learned counsel has submitted that in the book of Code of Civil Procedure authored by Shri T.K.Tekwani, 7th edition, while discussing and elaborating on the provision of Order 40 Rule 1 it has been observed that the order of allowing the petition for appointing

a receiver, unless a person is not appointed, appeal does not lie. It is contended by the learned counsel that the appellant should have filed a revision against the said order however the same is barred by limitation.

8. Per contra, Mr. Rajeev Ranjan, learned senior counsel , on behalf of the appellant, has contended that similar question had cropped up in the case of P.L.S.Palaniappa Chetty Alias vs. P.L.P.P.L Palaniappa Chetty, reported in 1917, 32 M.L.J. 304 and the Madras High Court, while considering the decision rendered by the Bombay High Court and Allahabad High Court, held that the order for appointing a receiver without actually naming a particular person as a receiver is an order passed under Order 40 Rule 1 and is appealable under Order 43(i) (s) of the Civil Procedure Code. That the said decision was followed by the Patna High Court in the case of Govind Ram and Others vs. Ganesh Ram and Others, reported in AIR 1922 Patna 577.

Learned counsel for the respondent has submitted that in view of the decision of the Supreme Court as rendered in AIR 1981 SC 1786 and 1974 (2) SCC 393 the judgment and decision in the case of Govind Ram(Supra) is not sustainable.

9. Having heard the learned counsels and on perusal of the decision reported in (1974) 2 SCC 393 in the case of Ganga Bai vs. Vijay Kumar and Ors., relied on by the learned counsel for the respondent/plaintiff, it is amply clear that the ratio of the decision is not applicable to the facts of the present case. However, it is relevant to note that in para 16 of the said decision, as referred to by the learned counsel for the respondent, it has been held that Order 43 Rule 1 of the Code by reason of Clause (i) of Section 104(1) forms a part of that Section which provides for appeal against orders passed under clauses (a) to (w) of Order 43.

10. On going through the decision of the Apex Court in the case of Shah Babulal Khimji vs. Jayaben D. Kania, reported in AIR 1981 SC 1786(Supra), relied on by the learned counsel for the respondents, it is amply clear that in the said case the plaintiff/appellant had instituted the suit on the original side of the Bombay High Court, for specific performance of a contract and prayed for an interim relief by appointing a receiver for the suit property and injuncting the defendants from disposing of the suit property during pendency of the suit.

The learned Single Judge had dismissed the application for appointment of receiver as also for interim injunction whereafter the plaintiff/appellant preferred an appeal before the

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Division Bench which dismissed the appeal holding that the order passed by the Single Judge was not a judgment as contemplated under Clause 15 of the Letters Patent of the High Court, consequent thereto, appeal was preferred by way of Special Leave to the Supreme Court.

The substantial question of law raised before the Supreme Court was about the scope and ambit as to what order can be termed or defined as 'judgment' under Letters Patent, specially in those High Courts which have ordinary Civil jurisdiction depending on the valuation of the suit since the decisions rendered by various High Courts were inconsistent and at variance while interpreting whether the order passed was a judgment appealable under the Letters Patent Appeal.

It is relevant to note that in the said decision the Supreme Court while elaborating and discussing the scope and ambit of appeal under Letter Patent jurisdiction and under Section 104 read with Order-43 Rule-1 of the Code held that there was no inconsistency between Section 104 read with Order-43 Rule-1 and appeals under Letters Patent. It was held that there was nothing to show that the Letters Patent in any way excludes or overrides Section 104(1) rather Section 104(1) expressly saves the Letters Patent Appeal. It was observed by the Supreme Court that provisions of Section 117 and Order 49 Rule 3 of the Code excludes various other provisions from the jurisdiction of the High Court but it does not exclude Order 43 Rule 1 of the Code of Civil Procedure and held that Section 104 of the Code read with Order 43 Rule 1 expressly authorises a forum of appeal against orders passed under various clauses of Order 43 Rule 1, to a larger Bench of a High Court without overriding the Letters Patent jurisdiction.

11. The contention of the learned counsel for the respondent that the aforesaid decision has overruled the decision in the case of Govind Ram and Others(Supra) of Patna High Court and P.L.S.Palaniappa Chetty Alias(Supra) is misplaced and misconceived. On the contrary the ratio of the decision rendered in the case of Shah Babulal Khimji (Supra) relied upon by the learned counsel for the respondents does not substantiate or support the aforesaid contention of the learned counsel for the respondent, on the contrary, it fortifies the argument propounded by the appellants' counsel.

12. From plain reading of Section 104(1) of the Code it is evident that the said provision contemplates for an appeal from the orders enumerated therein as also appeals expressly provided under

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the Code or by any law for the time being in force and when an appeal is expressly saved by Section 104(1), then sub-Section (2) will not be applicable to such an appeal. On reading of Section 104 the only interpretation which can be arrived at is that the finality provided by sub-Section (2) attaches to orders passed in an appeal under Section 104 which provides for the appeal from the orders enumerated therein. Order 43 of the Code enumerates the clauses under which the appeal lies. It is stipulated in clause 1(s) of the Order 43 that an order passed under Rule 1 of Order 40 is appealable.

Order 40 Rule 1 reads as under:-

"40. Appointment of receivers.- (1) Where it appears to the court to be just and convenient, the court may by order- (a) appoint a receiver of any property, whether before or after decree."

13.On plain reading of the provision it is amply clear that under Order 40 Rule 1 what falls for consideration and determination of the court is whether it is just and convenient to appoint a receiver in a suit. On perusal of the order impugned hereinabove, while passing the interlocutory order the Court has determined and adjudicated the question for appointment of receiver while rejecting the objection raised by the defendant whereby a valuable right of the party has been affected and settled the issue by giving a finding that it is just and convenient to appoint a receiver thus, the nature of the order adversely affects the right of a party keeping the suit alive. The naming of a particular person as a receiver, whose name is to be suggested by the parties, is a mere formality. The question regarding appointment of receiver has attained finality. Though the suit is kept alive nonetheless it affects a vital right of a party and such an order has been passed in terms of the provisions of Order 43 Rule 1(s) which is appealable. It would be not out of placeto take note of the submission of the learned counsel whereby he has argued that only an order rejecting an application under Order 41 Rule 1 is appealable. If this argument is accepted then on a parity of reasoning the converse, i.e., the order allowing the appointment of receiver under Order 41 Rule 1 is also appealable under Order 43 Rule 1(s).

14. Thus, in view of the discussions made above, it

is held that the appeal is maintainable, accordingly, the application of the respondent/plaintiff is hereby rejected.

15. Office is directed to list the appeal under the heading 'for Admission' before the appropriate Bench.

(Amitav K. Gupta,J)

Biswas.