RAJNITI PRASAD SINGH Vs. NRISINGHA CHARAN

JUDGEMENT

(1.) This is an application for leave to appeal to the Privy Council [Nrisingha v. Rajniti AIR 1932 Pat 360] against the decision of a Division Bench of this Court in the matter of the appointment of a receiver during the pendency of a mortgage suit. The plaintiffs instituted the suit to enforce two simple mortgages of an impartible Raj which is now in the possession of defendant 19, Nrisingha Charan Nandy Chaudhury, under a usufructuary mortgage executed by the mortgagors. The Subordinate Judge made an order for appointment of a receiver, but on appeal": this Court has set aside the order, and the present application is for leave to appeal against that decision of this Court.

(2.) The only question for consideration is whether the decision of this Court can be construed to be a decree or final order within the meaning of Section 109(a), Civil P.C. The question has been considered in several cases. In Chundi Dutt v. Pudmanund Singh (1895) 22 Cal 928, it was held that there was no appeal to the Privy Council, against an order refusing the appointment of a receiver in a suit inasmuch as such an order does not finally decide any matter which is directly at issue in the case in respect to the right of the parties and is not final within the meaning of Clauses (a) and (b), Section 595 of the Code of 1882 and Clause 39, Letters Patent, of the Calcutta High Court. The learned Judges relied, amongst others, upon the decision of the Privy Council in Kishen Pershad V/s. Tiluckdhari Lal (1890) 18 Cal 182 and held that the order refusing to appoint a receiver was not an order which finally decided any question at issue in the case or the rights of any of the parties.

(3.) They also referred to the Privy Council decision in Rahimbhoy Habibhoy , v. Turner (1890) 15 Bom 155, in support of the proposition that the order was not a final order. In Muhamad Musaji Saleji V/s. Ahmad Musaji Saleji (1911) 10 IC 439 the same view was taken and it was held that an order appointing a receiver was not a final order within the meaning of Clause (a), Section 109 of the Code, and that where the question in controversy was whether a receiver should or should not be appointed in respect of the subject-matter of the litigation, and the Courts took divergent views upon the matter, certificate as to the fitness of the case for appeal to His Majesty in Council should not be granted.