KUTEER VENGAYIL RAYARAPPAN NAYANAR, KARNAVAN OF KUTEER VENGAYIL TARWAD Vs. KUTEER VENGAYIL VALIYA MADHAVI AMMA

JUDGEMENT

(1.) The appellant was appointed a receiver in O.S. No. 28 of 1945. Upon a petition by some of the parties to the suit, who made certain allegation of maladministration, the appellant was removed from his receivership by the Subordinate Judge of Tellicherry and two others were appointed in his stead. A preliminary point argued in the appeal is whether the appeal is maintainable.

(2.) We have no doubt that the law in most High Courts, including this High Court, is that no appeal lies against an order removing a receiver. The matter came up directly for decision in C.M.A. No. 278 of 1944 before a Bench of this Court; and it was held that in the absence of any special provision in the Code for an appeal against an order removing a receiver, no appeal would lie. The learned judges purported to follow Ramaswami Naidu V/s. Ayyalu Naidu (1923) 46 M.L.J. 196, although the question that came up for decision in that appeal was whether any appeal lay against an order refusing to remove a receiver. If an order removing a receiver were appealable then an order refusing to remove a receiver would also be appealable and vice versa. Even if this matter were res Integra, we should be of opinion that no appeal lies against the order removing a receiver; for Section 104, Civil Procedure Code, begins by saying " An appeal shall lie from the following orders and ... from no other orders." This seems to us to make it clear that unless an appeal is specially provided for in the Code, no appeal will lie against any order.

(3.) The learned Advocate-General relies on Sripati Datta V/s. Bibhuti Bhushan Datta (1925) I.L.R. 53 Cal. 319 and Abdul Kadar V/s. R.M.P. Chettiar Firm A.I.R. 1933 Rang. 387, in which it was held that an order removing a. receiver was appealable. In both these cases the learned Judges relied on the provisions of Section 16 of the General Clauses Act which runs: Where...a power to make an appointment is conferred then...the authority having the power to make the appointment shall also ha.ve power to suspend or dismiss any person in exercise of that power. We are unable to see how it can be argued from this section that an appeal would lie against an order removing a receiver. This provision can be relied on to show that a Court appointing a receiver has also power to remove him; but it would not follow that because the Court had power to remove a receiver that the order removing him was appealable. It seems to us that the reasoning of the learned Judges in this case runs counter to the express provisions of Section 104, Civil Procedure Code, just quoted. In another Calcutta case, Mano Mohan Niyogi V/s. Surendra-kumar Ray Ghaudhury (1932) I.L.R. 60 Cal. 162, Sripati Datta V/s. Bibhuti Bhushan Datta (1925) I.L.R. 53 Cal. 319, was followed; but the opinion there expressed was obiter, since the learned Judges went on to say that no appeal lay at the instance of a receiver who was not a party to the suit. These Calcutta decisions overlooked the earlier decisions of the Calcutta High Court such as Eastern Mortgage and Agency Co., Ltd. V/s. Premananda Saha (1914) 20 C.W.N. 789 and Sahabjada Faridun Sfiiko V/s. Fakir Muhammad (1914) 24 I.C. 862, which were followed in Ramaswami Naidu V/s. Ayyalu Naidu (1923) 46 M.L.J. 196. That the opinion of the Allahabad and Patna High Courts is the same as in Madras can be seen from Anthony Ulysess John V/s. Agra United Mills Ltd. and Surendranath V/s. Nagarchand (1946) I.L.R. 25 Pat, 779. In the former case, the learned Judge who delivered the judgment of the Bench said: The appellants rely upon a decision of the Calcutta High Court in Sripati Datta V/s. Bibhuti Bhushan Dalta (1925) I.L.R. 53 Cal. 319. This decision undoubtedly favours the contention of the appellants. We regret, however, that we cannot follow it. This decision proceeds upon the ground that under Section 16 of the General Clauses Act (Act 10 of 1897) the power to appoint includes the power to remove or dismiss and that therefore the right to appeal from an order of appointment must be held to include the right of appeal from an order of dismissal. We cannot follow this reasoning and we do not see what the principle underlying Section 16, General Clauses Act, has to do with the right of appeal. Where a right of appeal has to be expressly conferred by statute it cannot be presumed to exist by recourse to a rule of analogy or a rule of logic. With these remarks we respectfully agree. Anthony Ulysses John V/s. Agra United Mills, Ltd. , was approved of and followed in Surendmnath V/s. Nagarchand (1946) I.L.R. 25 Pat. 779.