AJIT SINGH Vs. YAMUNA DEVI

JUDGEMENT

(1.) This is an appeal by Ajit Singh and Abhaya Singh against the order of the Additional District Judge of Jaipur. This order has been passed in a pending suit for partition brought by Yamuna Devi, plaintiff-respondent, against the appellants and their brother Amar Singh. The plaintiff-respondent claims that she is entitled to half the property, while the other half belongs to the three brothers, and wants her share to be partitioned by metes and bounds. During the pendency of the suit a receiver was appointed by the Court with the consent of all the parties in April, 1951, The receiver realised Rs. 10,000/- from the Public Works Department. Thereafter the parties applied to the Court that the receiver may be directed to pay them certain amounts by way of subsistence allowance. The Additional District Judge, by his order under appeal, directed the receiver to keep Rs. 5,000/- in reserve, and to pay Rs. 2,500/- to the plaintiff- respondent and Rs. 2,500/- to the defendants-appellants and their brother Amar Singh. The present appeal has been filed against that part of the order by which the plaintiff-respondent has been given an equal amount with the defendants-appellants and their brother, and it has also been suggested that the defendants-appellants and their brother should have been given a larger amount.

(2.) A preliminary objection has been raised that no appeal lies against the order in question. Learned counsel for the appellants, however, urges that the order is appealable under Order 43, Rule 1 (s) read with Order 40, Rule 1 (d), Civil P. C. Order 43, Rule 1 (1) provides for appeal from an order under Rule 1 or Rule 4 of Order 40. We are not concerned here with Order 40, Rule 4. Order 40, Rule 1 (d) on which reliance has been placed reads as follows: :

(3.) Before we examine the authorities, we may analyse the words of this rule itself. Obviously Rule 1, Clause (d), comes into operation after a receiver has been appointed under Clause (a). Clause (a) deals merely with the appointment of the receiver, while Clause (d) deals with conferment of powers on him. It is of course not necessary that the Court should confer all the powers which are specified in Clause (d) on the date on which the order appointing the receiver is made. It is open to a Court, for example, to confer some powers at the time of appointment and confer other powers later on. But the main point which it is necessary to stress is that under Clause (d) the Court confers powers on the receiver to do certain acts. Conferment of such powers, in our opinion, implies that the receiver is left with the discretion to decide himself whether he would exercise those powers in a particular set of circumstances. But where the Court merely passes an order or gives a direction on which the receiver is bound to comply with, it cannot be said that any power is being conferred on the receiver within the meaning of Clause (d) of this Rule. In most of the cases, cited on behalf of the appellants, it has been assumed that an order directing the receiver to pay a certain sum of money out of the money in his possession to a certain person is a conferment of power on him to dispose of the money in his hand. But with all due respect to the learned Judges who have come to that conclusion, we must say that there is no power left in the receiver when he receives such an order. All that he has to do is to comply with the order or direction of the Court. We may also respectfully point out that there is apparently no reasoning in those cases in support of the assumption which we have mentioned above.