RAMASWAMI NAIDU Vs. AYYALU NAIDU

JUDGEMENT

(1.) This is an appeal against an order refusing to remove the 1 defendant from his position of receiver in a partition suit brought against him and another.

(2.) A preliminary objection is taken to the maintainability of this appeal on the ground that no appeal lies under Order 43, Rule 1(s) of the Civil Procedure Code. The Clause gives a right of appeal only against orders passed under Rules 1 and 4 of Order 40. It is contended first by the appellant's vakil that this is a case which would fall under Order 40, Rule 1(a) itself on the ground that they wanted not only to get the present receiver removed but another man appointed in his place and he, therefore, contends that this a ease where the Court has refused to appoint a receiver. We are unable to accept this contention, for till the present receiver is removed, there will be no scope for appointing another receiver in his place and, therefore, the authority cited by him Munilal V/s. Jagannath (33 Ind.Cas. 735, which deal with a case of refusal to appoint a receiver does not apply, Refusing to remove a receiver already appointed is quite different from refusing, to appoint a new receiver.

(3.) It was then contended that this application should be treated as one falling under Order 40, Rule 1(b). That Clause says; "Remove any person from the possession or custody of any property," and it is argued that, when the present receiver is removed," it would necessarily result in his being removed from the possession or custody of the property in suit. That argument also we are unable to support as we think that the word "person" in Clause (b) refers to a person other than a "receiver, " for Clause (a) shows that the property removed from the possession or custody of the person referred to in Clause (b) is to be committed to the possession, custody or management of the "receiver" by Clause (e). We think that it is impossible to bring this case under Order 40, Rule 1; and, of course, it does not fall under Order 40, Rule 4. Therefore, we must hold that no appeal lies. We are fortified in this view by the rulings of the Calcutta High Court in 20 C.W.N. 789 and 24 I.C. 862. The appeal, therefore, fails and is dismissed with costs.