KRISHNADITYA NARAIN TEWARI Vs. DEVENDRA NATH MISHRA

JUDGEMENT

(1.) THIS appeal has been filed against order dated 18.1.1989 passed in Miscellaneous Appeal No. 221 of 1988, whereby the said appeal has been dismissed summarily.

(2.) SHORT facts are that the plaintiff filed Title Suit No. 113 of 1987 for declaration of title, confirmation of possession and in the alternative for recovery of possession as well as mesne profit. During the pendency of the suit, an application was filed on behalf of the plaintiff for appointment of receiver under Order XI, Rule 1 of the Code of Civil Procedure (hereinafter to be referred to as 'Code '). The trial court by its order dated 31.5.1988 allowed the prayer for appointment of receiver and appointed an advocate of the court as receiver to manage the suit property. Against the said order defendant 1st party preferred an appeal before this Court, which was registered as Miscellaneous Appeal No. 221 of 1988 and when the said appeal was placed before a learned single Judge of this Court, by order dated 18.1.1989 the same was dismissed summarily. Hence this Letters Patent Appeal.

(3.) LEARNED counsel appearing on behalf of the appellant submitted that the present appeal is maintainable under clause 10 of the Letters Patent of Patna High Court and the bar created by section 104(2) of the Code shall not apply in relation to the present appeal. In support of his submission learned counsel placed reliance upon three decisions. In the case of Board of Governors St. Thomas School and others vs. A.K.George and another (AIR 1984 Calcutta, 208) when Letters Patent Appeal was filed against the order passed by the learned single Judge it was laid down that the appeal was maintainable. We find that in that case, the learned single Judge passed an order in exercise of original jurisdiction and rejected the application for revocation of leave granted ex parte and against the said order Letters Patent Appeal was filed, which was held to be maintainable under Clause 15 of the Letters Patent of Calcutta High Court. The Court held that the appeal was not barred under Section 104 of the Code. In that case, the appeal was rightly held to be maintainable as the bar created by Section 104(2) of the Code did not apply as the order was passed by the learned single Judge in exercise of original jurisdiction and not in exercise of appellate jurisdiction therefore, the aforesaid decision can be of no help for learned counsel appearing an behalf of the appellants.