RYRU NAIR Vs. GOVINDAN NAIR

JUDGEMENT

(1.) Two questions are raised in this Civil Revision Petition, one regarding the interpretation of an order, Ext. A3, as to whether it is an order appointing a receiver and the other regarding the appeal ability of an order refusing to remove a receiver. The trial court held that Ext. A3 was not an order appointing a receiver, but the order only allowed the petitioner herein to continue in possession of the properties on certain terms and in that view it dismissed the application filed by the respondent herein to remove the petitioner from receivership. The respondent herein filed an appeal before the lower appellate court, which reversed the decision of the trial court and directed the discharge of the receiver. The petitioner, who was respondent in the lower appellate court and who was directed to be removed from receivership, has filed the present Civil Revision Petition and, as I have already indicated, two contentions have been urged before me, one regarding the interpretation of Ext. A3 and the other regarding the maintainability of the appeal before the lower appellate court against the order of the trial court refusing to remove the petitioner herein from receivership.

(2.) I shall first consider whether Ext. A3 is an order appointing the petitioner as receiver. In the course of the discussion, the learned Judge, who passed the order Ext. A 3, expressed the opinion that there were no sufficient grounds to oust the petitioner herein from possession of the Properties and to have a third party appointed as receiver. At any rate, towards the end of the order he said: "In my opinion the interests of justice would be sufficiently that if the plaintiff is put on terms and directed to be in possession and management of the properties as receiver." Whatever might have been the grounds for passing this order, the order is clear that the plaintiff, i.e., the petitioner herein, was directed to be in possession and management of the properties as receiver. Therefore there is no force in the contention that Ext. A3 is not an order appointing the petitioner as receiver but it only directed him to continue in possession on terms, This order was taken up in appeal and Ext. A2 is the decree passed in appeal. This also indicates that the order of the lower court was treated as an order appointing the plaintiff in the suit as receiver. The suit itself was finally disposed of by the judgment evidenced by Ext. A4 and there also the learned Judge observes that the plaintiff was appointed receiver. In view of these categorical observations, I am inclined to hold that Ext. A3 is an order appointing the present petitioner as receiver. This leads me on to the consideration of the next question, whether the appeal to the lower appellate court against the order of the trial court refusing to discharge the petitioner from receivership was competent.

(3.) Mr. Kelu Nambiar, the learned advocate of the petitioner, has carefully placed before me all the relevant decisions on this question. I shall deal with only three or four o them, because, according to me, the question is practically covered by a decision of the Federal Court in Kutoor Vengayil Rayarappan v. Madhavi Amma, AIR 1950 FC 140. Before I consider this decision, I shall refer to two decisions of the Travancore Cochin High Court on this question. The earlier of these two decisions is Skari Kuruvilla v. Mathai Avira, 1954 Ker LT 981. The Division Bench which decided this case took the view that an order refusing to remove a receiver was not covered by the decision of the Federal Court in Rayarappan Nayanar's case and therefore held that such an order was not appealable. In a later Divisional Court ruling of the same court in Velayudhan Narayanan v. Mathevan Narayani. 1954 Ker LT 791: ((S)AIR 1955 Trav-Co. 163) a contrary view was taken. This Bench held that an appeal from an order dismissing the application for the discharge of a receiver was maintainable. I may at this stage mention that the earlier decision in, 1954 Ker LT 981 had not been brought to the notice of the later Bench. But both the decisions had discussed the Federal Court decision in Rayarappan Nayanar's case and had interpreted, this decision. According to the earlier decision, the Federal Court decision was no authority for the proposition that an appeal lay against an order refusing to discharge a receiver, but according to the later decision the reasoning in the same Federal Court decision supported the view that an appeal lay against an order refusing to discharge a receiver, but according to the later decision the reasoning in the same Federal Court decision supported the view that an appeal lay against an order of refusal to discharge a receiver. Thus these two decisions are directly in conflict.