K P THAMPY Vs. RAMA KURUP NARAYANA KURUP

JUDGEMENT

(1.) THIS appeal preferred by the defendant is directed against the order of the District Judge of Trivandrum in an application for appointment of a receiver in 0. S. No. 55 of 1955. The suit property consisted of a three storeyed building which according to the plaintiff had been rented to the defendant on a monthly rent of Rs. 110 from 1st February 1953. Contending that the rent was not being regularly paid, the plaintiff filed the suit for recovery of the building with arrears of rent and sought the appointment of a receiver pending the same. The defendant contended that no arrears are due as the rent payable was set off against the amount spent by him for repairs of the building. The lower court passed an order directing the defendant to deposit rs. 1,500 towards the past arrears without prejudice and Rs. 110 every month towards the future rent. The plaintiff was provisionally allowed to withdraw rs. 80 out of the monthly rent directed to be deposited. It was also ordered that if the conditions were not fulfilled the prayer for the appointment of a receiver will stand allowed and the property be placed in the possession of the receiver. The appeal is directed against the said order.

(2.) ON behalf of the plaintiff, a preliminary objection was raised regarding the maintainability of the appeal, it being urged that the order appealed against is not a final order as contemplated under O. XL, R. 1 being the relevant provision. As per O. XLIII, R. 1 (s) only orders under R. 1 and 4 are appealable. In the present case as per the lower court's order if the defendant defaults in carrying out the directions the property will pass to the possession of the court as the order appointing a receiver comes into effect on such default. ONly further order that the court is to pass is the one nominating the receiver who is to keep possession on behalf of the court. The decisions of the Indian High Courts on the question as to whether such an order is appealable or not are not uniform. The Bombay High Court in Narbadashankar v. Kewaldas (A. I. R. 1915 Bom. 41) has held that such an order is not appealable and the same has been followed in another decision cited on behalf of the plaintiff by the Allahabad High Court in Muhammad Ashari v. Nisar Husain (A. I. R. 1920 All. 149 ). These decisions are referred to and followed in Mt chandrasena v. Raoji (A. I. R. 1934 Nag. 64) where Pollock, J. observed as follows: "i respectfully agree with the view expressed by the majority of the High Courts that a decision that it is just and convenient to appoint a receiver, does not amount to an order appointing a receiver, and I do not see why any inconvenience should be caused if the party objecting to this order has to wait during the short interval that must elapse between such an order and the appointment of a receiver".