OUSEPH Vs. PYLEE

JUDGEMENT

(1.) This appeal against the order of a single Judge of this court appointing a receiver in a suit pending appeal here, is before us for decision on the question whether the appeal lies at all.

(2.) Not all the arguments of Mr. Paikaday has satisfied us that it does. True, an order appointing a receiver falls within O.40 R.(1), and an appeal lies against such an order under S.104(1)(i) read with O.43 R.1(s), of the Code of Civil Procedure. But it is still necessary for Mr. Paikady to show that the appeal lies to a bench of this very court. For this he relies on S.21 of the Travancore-Cochin High Court Act, V of 1125 which, so far as it is relevant, runs as follows:

(3.) We cannot agree. The term, original jurisdiction, is well understood and comprises those matters of which the court takes cognizance as a court of first instance. The cause in which the order how sought to be assailed was passed, viz., the appeal, was a cause of which this court took cognizance in exercise of its appellate and not of its original jurisdiction. And it seems to us apparent that an interlocutory order passed in such a cause is an order passed in exercise of appellate and not of original jurisdiction It is S.107(2) of the Civil Procedure Code that enables a court seized of an appeal to pass orders of this nature, and a perusal of that section which says that the appellate court shall have the same powers as conferred by the Code on courts of original jurisdiction in respect of suits instituted therein, will make it clear that it is in exercise of appellate and not of original jurisdiction that an appellate court makes such an order. Then, if we turn to S.106 of the Code, we find that it provides for an appeal to the High Court from an order of this nature made by a court (not being an High Court) in exercise of appellate jurisdiction. Under S.104(2), no appeal lies from an appellate order, and the provision made in S.106 can only be in respect of orders like the present order, viz , what might be called an original order made in an appeal. Such an order is there described as an order made in the exercise of appellate jurisdiction; and it must have been for the specific purpose of excluding such an order passed by a Single Judge of the High Court from the scope of an appeal to a Division Bench, that S.21(ii)(b) of the High Court Act restricts the appeal to orders made in exercise of original jurisdiction. It will be noticed that under S.104(2) of the Civil Procedure Code no appeal lies from an appellate order so that the words, in exercise of original jurisdiction, were unnecessary for the purpose of excluding appeals from appellate orders. On the other hand, under S.106 of the Code, no forum is prescribed for an appeal from an original order made by a High Court in an appeal before it, and it is obvious that the words in question were inserted for the purpose of restricting appeals to orders passed by the High Court in matters of which it is seized as a court of first instance so far as this High Court is concerned in exercise of what is usually called its extraordinary Original jurisdiction.