SRIPATI DUTTA Vs. BIBHUTI BHUSAN DUTTA

JUDGEMENT

(1.) This appeal is directed against on order of the Subordinate Judge of Burdwan removing a Receiver, who had been appointed in a suit (No. 142 of 1923) for declaration of title and partition of certain moveable and immovable properties.

(2.) A preliminary objection has been taken on behalf of the respondents that no appeal lies, and it becomes necessary to deal with this first. So far as this Court is concerned the question appears to be one of first impression. At all events no case has been brought to our notice in which this particular point has been decided. It is contended that Rule 1(s) of Order 43 of the Civil P.C., under which alone an appeal can lie, has no application, inasmuch as Rule 1(1)(a) of Order 40 refers only to appointment of a Receiver and is silent as to his removal. It is argued that, as the Civil P.C. nowhere expressly provides a right of appeal against an order removing or dismissing a Receiver, an intention to provide for such appeal ought not to be read into the Act. Now, Order 43, Rule 1(s) gives a right of appeal against an order under Rule 1 or Rule 4 of Order 40. The learned advocate for the appellants in meeting the objection has not relied on Rule 4 of the order, and it is obvious that it has no application in the present case. He has relied, however, on Rule 1(1)(b) of Order 40. This Sub-section and the portion which precedes it read as follows: "When it appears to the Court to be just convenient, the Court may by order...remove any person from the possession or custody of the property." It is argued that the words any person" include a Receiver and that, that being so, the appeal is competent. It is, I think, open to doubt whether this sub-section has the wide meaning sought to be attached to it, so as to make it include a Receiver, and it appears to me that it refers to persons interested in the property and in possession or custody of it prior to the passing of an order appointing a Receiver. This view seems also to be supported by Sub-section (c) which follows.

(3.) In my opinion, however, an appeal will lie under Sub-section (a) of Rule 1(1) of Order 40. The words used therein are, it is true, "appoint a Receiver of any property," but under Section 16 of the General Clauses Act, (X of 1897), the power to appoint includes the power to remove or dismiss, the power to terminate being a necessary sequence from and adjunct to the power to create and it may, therefore, be argued that, if a right of appeal is given against appointment, it is given equally against the removal of a Receiver, since appointment includes the right to remove. It is true the Code nowhere makes express provision for an appeal against the removal of a Receiver, as it does in the case of his appointment, but the reason may well be that it was not considered necessary by virtue of the section in the General Clause Act referred to above Clauses one of the objects of a General Clauses Act is to avoid superfluity. Moreover, if an appeal lies against the appointment of a Receiver, it would seem to be only logical and consistent that an appeal should equally lie against his removal.