NARASINGA GOWDA Vs. SUBRAMANYA SARALAYA

JUDGEMENT

(1.) Petitioners are the defendants in OS.No.257 of 1968 on the file of the Munsiff at Buntawal, S.K. An application, IA.II was filed for temporary injunction by the plaintiff and that was granted. It appears that parties filed a joint memo on 6th March 1969 stating that without prejudice to the contentions by the parities a receiver may be appointed to look after the areca garden mentioned in the plaint A schedule and Sri N. B. Angraja may be appointed as the receiver. The terms were also stipulated therein that the receiver shall not lease the property to any one and he shall appoint a servant for the purpose of watering and looking after the areca garden. Provision was also made therein for the purpose of payment and maintenance expenses incurred by the receiver. On this memo, the trial Court appears to have passed an order appointing the receiver with regard to the property mentioned in the joint memo. The receiver took possession of two items of property. The question then arose with regard to the interpretation of the order passed in the joint memo as to whether the receiver was to take possession of another piece of land. Thereupon the receiver sought direction from the Court. Parties were heard on 16-10-1969 and the learned Munsiff took the view that the property which the plaintiff wanted the receiver to take possession was not covered by the order and therefore directed that the receiver should not take possession of the new garden mentioned by him in his report. It is this order passed by the learned Munsiff that was challenged by the plaintiff before the Court of the Civil Judge in MA.No.46 of 1969. The learned Civil Judge took the view that the property was covered by the order and therefore allowed the appeal and directed the receiver to take possession of both the items mentioned in the plaint A schedule.

(2.) Before the lower appellate Court it was contended by the defendants-petitioners that the appeal was not maintainable under Or.43, R.1, Cl.(s) CPC.; the learned Judge however took the view that the present case is covered by a decision of this Court reported in Iswara Sastry v. Ramakrishna Shastry, (1965) 1 Mys.L.J. 342. . In that view the learned Civil Judge held that the appeal was competent and allowed the appeal on merits and set aside the order of the trial Court. It is the correctness of this order that is challenged in this revision petition.

(3.) Sri Tukaram S. Pai, learned Counsel appearing for the petitioners, contends that under the provisions of Or.43, R.1 Cl. (s) CPC. the present appeal is not maintainable and therefore, the lower appellate Court had no jurisdiction to entertain the appeal and so the order is liable to be set aside. Or.43, R.1 Cl. (s) CPC. states that an appeal lies from an order under R.1 or,R.4 of Or.40. Or.40 CPC. states that 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; (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the receiver. We are not concerned with the other clauses or with R.4. It was therefore submitted by Sri Pai that in the present case the order is not passed under Cl. (b) or (c) of Or.40, R.1 CPC., so the appeal was not maintainable.