This is an appeal against an order of the Subordinate Judge, Lower Assam Districts, Gauhati by which according to the appellant he appoint­ed a receiver in a suit. The respondent brought a suit for possession. The defendant's case was that he was in possession of the property without any right and the plaintiff had no title to the pro­perty. The Subordinate Judge came to the con­clusion that it was just and convenient that a re­ceiver should be appointed to collect rent from tenants and by the same order fixed a later date for the appointment of the receiver.

It is against that order that the present ap­peal has been filed. A preliminary objection has been taken on behalf of the respondent that no ap­peal lies against the present order. In our opin­ion there is substance in the preliminary objection raised by the respondent and the appeal is prema­ture. There is some conflict between various High Courts on this question and it is therefore neces­sary to refer to certain provisions of the Civil Pro­cedure Code and the decisions of the various High Courts on this point. Order 40, R. 1, Civil Pro­cedure Code provides as follows :

"1. (1) Where it appears to the Court to be just and convenient, the Court may by order

(a) appoint a receiver of any property, whe­ther before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, cus­tody or management of the receiver; and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realisation, management, protection, preservation & improvement of the property, the collection of the rents and profits thereof, the application & disposal of such rents and profits, and the execution of docu­ments as the owner himself has, or such of those powers as the Court thinks fit.

(2) Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove." Order 43, R. 1 (s) is as follows :

"An appeal shall lie from an order under R. 1 or R. 4 of O. 40."

The question therefore to be considered is whe­ther the order appealed against can be said to be an order under O. 40, R. 1 of the Code of Civil Procedure. It is admitted that this is not an order under O. 40, R. 4. We have therefore to see whether the operative portion of the order comes under Order 40, rule 1. The operative portion of the order is in the following terms :

"In the circumstances, I consider it just and convenient that a receiver should be appointed till the disposal of this suit to collect rent from defendants 2 to 7 in respect of the houses in set and for their due preservation. The present appli­cation of the plaintiff under Order 40, rule 1 of the Civil Procedure Code for appointment of an ad-interim receiver is therefore, allowed without costs in the circumstances of the case. Fix 2S-12-57 for nominating and appointing a recei­ver."

Therefore on a reading of this order it is clear that it was an order proposing that a receiver should be appointed. No appointment of a receiver has been made by this order. The expressions "a re­ceiver should be appointed" and "fix 23-12-57 for nominating and appointing a receiver" are signifi­cant. They suggest that the Sub-Judge had come to the conclusion that it was just and convenient to appoint a receiver but no actual appointment has been made by this order.

Order 40, rule 1, Civil Procedure Code which we have already quoted, empowers the court to appoint a receiver. Unless an order appointing a receiver is made Under Order 40, rule 1, it can­not be said to be an order under Order 40, rule 1, subject to an appeal under Order 43, rule 1 (a). It was strongly contended by the counsel for the appellant that in order to decide that a particular order comes under Order 40, rule 1, various cir­cumstances have got to be taken into considera­tion.

Firstly the application itself was made asking