VISHWANATH Vs. KANAKMAL

JUDGEMENT

(1.) THIS is an application under Article 133, Constitution of India, for leave to appeal to the Supreme Court from our decision dated 27 -11 -1951 in Civil Miscellaneous Appeal No. 42 of 1951, upholding an order made by the Additional District Judge, Indore, whereby he appointed a receiver of the mortgaged property in the Plaintiff -non -applicant's suit to enforce four mortgages executed by the applicant.

(2.) WE have heard learned Counsel for the parties. In our opinion, this application must be rejected because the order sought to be appealed from is not a final order and the proposed appeal does not involve any substantial question of law. The question as to what is a "final order" for the purposes of Section 109, Code of Civil Procedure and Section 205, Government of India Act, 1935, has been considered in a number of cases. In - 'Mohammad Amin Brothers Ltd. v. Dominion of India, AIR 1950 FC 77 (A), it has been observed that:

(3.) EVEN if it is taken that in the present case the order appointing a receiver is a final order, the appeal intended to be filed therefrom does not involve any substantial question of law. The contention that Order 41, Rule 1, Sub -clause (1) has been interpreted differently in - Ram Swarup v. Anandi Lal : AIR 1936 All 495 (H) and, therefore, the case involves a substantial question of law may be disposed of by saying that the decision of the Allahabad High Court in - ' : AIR 1936 All 495 (H) was doubted in - Mt. Tulsha Devi v. Shah Chironjee Lal : AIR 1943 All 1 (FB) (I) and subsequently Sub -rule (1) of Rule 1, Order 40 was amended in Allahabad so as to make it clear that a party to the suit is not included in the words "any person". Learned Counsel for the applicant also raised the objection that the trial Court had no jurisdiction to try the suit and pass an order appointing a receiver. As to this, it is sufficient to say that the point was never raised while proceedings were pending in the Court below or in this Court. As the point was not raised and decided, it cannot be said that the order appointing a receiver rested upon a consideration and decision of that point and that a substantial question of law was involved in the case. Learned Counsel for the applicant also advanced the argument that as this Court while maintaining the order of the lower Court appointing a particular person as a receiver, observed that the applicant was not precluded from stating his objections in the lower Court to the appointment of that person as a receiver, the order passed by this Court was not an affirming order. There is no substance in this contention. The result of our decision was to confirm the order of the lower Court as regards the appointment of a receiver and the selection of a particular person by the Court as a receiver. The direction given by us, namely, that if the applicant thought that the person selected should not have been appointed as a receiver or that he should have been asked to give security, the applicant was at liberty to put his objections in the trial Court in no way varied the order passed by the lower Court.