P V ESWARA IYER Vs. SANKUNNI NAIR

JUDGEMENT

(1.) These civil revision petitions raise a question of law of some importance and that is whether an appeal is maintainable against an interlocutory order appointing a receiver in an original proceeding other than a suit, when the final order in the original proceeding is itself not open to appeal. The landlord, here petitioner, applied in O. p. Nos. 139 to 141 of 1948 on the file of the Court of the District Munsif of Palghat under Section 13(2) and (3), Malabar Tenancy Act, for fixing the fair rent in respect of the holding of the tenant, here respondent, and for a direction that he should pay one year's fair rent in advance or furnish security for the rent. There were interlocutory applications filed for the appointment of a receiver in case the tenant defaulted to pay the rent or furnish security. By his order dated 9-4-1949, the District Munsif directed the tenant to furnish security for Kanni rent on or before 20-4-1949, but the tenant failed to comply with this order. On the landlord's applications I. A. Nos. 2618 to 2620 of 1948 in O. P. Nos. 139 to 141 of 1948 praying for the appointment of a receiver for the holdings of the tenant the District Munsif appointed a receiver. The tenant filed C. M. A. nOS. 11 to 13 of 1949 in the Court of the Subordinate Judge of South Malabar at Palghat, against the orders of the District Munsif appointing a receiver. The appellate Court reversed the orders of the Munsif on the ground that there were no sufficient grounds for dispossessing the tenant by the appointment of a receiver. The landlord has preferred these civil revision petitions against the orders of the appellate Court.

(2.) Mr. C. S. Swaminathan, the learned advocate for the petitioner, contends that the appeals referred by the tenant to the Court of the Subordinate Judge were incompetent and that the orders passed by the appellate Court were without jurisdiction. Both sides relied on Section 50, Malabar Tenancy Act (XIV [14] of 1930) which runs as follows :

(3.) The petitioner relied upon Ramanayya v. Kotayya, 57 M. L. J. 398 : (A. I. R. (17) 1930 Mad. 75) where this Court held that no appeal lay under Clause 15 of the Letters Patent against an order of a single Judge refusing to grant leave to appeal from his judgment in a second appeal. He also referred to In re Veerasami Padayachi, I. L. R. (1938) Mad. 633 : (A. I. R. (25) 1938 Mad. 399) where it was held that an order of a single Judge refusing to review his judgment in a second appeal was not appealable under Clause 15 of the Letters Patent. I might also refer to the recent decision in Kumarappa Chettiar v. The Official Receiver, West Tanjore, where the decisions in Ramanayya v. Kotayya, 57 M. L. J. 398 : (A.I.R. (17) 1930 Mad. 75) and in In re Govinda Row, 59 Mad. 293 : (A. I. R. (23) 1936 Mad. 134) were followed and an order refusing leave to appeal in a second appeal was held not to be appealable under Clause 15 of the Letters Patent. The ratio decidendi of these cases was that an order granting or refusing leave was part of the decision on the merits of the second appeal itself and not an independent order apart from the decision. Since the decision on the second appeal was open to a farther appeal only with leave, an order refusing leave which was part of the decision itself could not be treated as an independent order appealable without leave. I consider that these decisions have no application because the order appointing a receiver was a judicial order having a separate and independent existence of its own, apart from the order of the original petitions filed under Section 13, Malabar Tenancy Act. In my opinion, the merits of the order appointing a receiver could be canvassed on appeal independently of the merits of any final decision or order that might be rendered on the main petition. The petitioner also relied on the decision in Thomas Souza v. Gulam Moideen Beevi, 26 Mad. 438 and Kanai Lal v. Jatindra Nath, 45 Cal. 519: (A. I. r. (5) 1918 Cal. 925) to the effect that an order in execution of a decree passed under Section 9, Specific Relief Act, was not appealable. But this conclusion was based on the express language of Section 9 that "no appeal shall lie from any order or decree passed in any suit." The word "suit" was construed as being wide enough to include execution proceedings also.