MT. CHANDRASENA Vs. RAOJI

JUDGEMENT

(1.) POLLOCK , A.J.C. 1. The lower Court has passed the following order: Looking to the statements recorded and the affidavit filed by the applicant, I am of opinion that the minor's interest is likely to be prejudiced if the management is left in the hands of either party. For the protection of the property of the minor I think it just and convenient to appoint a receiver.

(2.) UNDER Order 40, Rule 1(1): where it appears to the Court to be just and convenient, the Court may by order appoint a receiver of any property; and under Order 43, Rule 1(S) such an order is appealable. It has been held by the Calcutta High Court in Upendra Nath v. Bhupendra Nath (1911) 9 IC 582, by the Bombay High Court in Narbadashankar v. Kewaldas AIR 1915 Bom 41, by the Allahabad High Court in several cases including Muhammmad Ashari v. Nisar Husain AIR 1920 All 149 and Kanhaiya v. Kanhaiya Lal AIR 1924 All 376, and by the Court of the Judicial Commissioner of Sind in Teoomal v. Givanomal, AIR 1927 Sind 202, that no appeal lies against an order deciding that the appointment of a receiver is just and convenient and that the appellant must wait until a receiver has been actually appointed. A Full Bench of the Madras High Court by a majority of 2 to 1 took the contrary view in Palaniappa Chetty v. Palaniappa Chetty AIR 1918 Mad 1146, but the two referring Judges were of opinion that the pronouncement, of the Court that a receiver should be appointed should be regarded as an interlocutory statement, and that until a person was appointed there was no final order under Order 40, Rule 1. The Patna High Court in Gobind Ram v. Ganesh Ram AIR 1922 Pat 577 preferred the Madras view, and reaffirmed the same view almost without discussion in Nrisingha Charan v. Rajniti, AIR 1932 Pat 360. I respectfully agree with the view expressed by the majority of the High Courts that a decision that it is just and convenient to appoint a receiver does not amount to an order appointing a receiver, and I do not see why any inconvenience should be caused if the party objecting to this order has to wait during the short interval that must elapse between such an order and the appointment of a receiver. It is also possible that the final order appointing a receiver may never be made. I therefore hold that no appeal lies.