The main legal point established in the judgment is the appealability of an order passed by the trial court under Order XL Rule 1(b) of the Civil Procedure Code.

1. The Civil Revision Petition has been preferred by one who is not a party to the suit. The plaintiff sued for recovery of possession of property from the defendants on the allegation that the same was leased to Defendants 1 and 2 under a registered lease deed dated 20.11.1123. Defendants 1 and 2 contended that the lease did not come into effect and that they did not get possession of the property. The plaintiff applied for the appointment of a receiver for the property and this was allowed by order dated 1.2.1952. When the receiver went to take possession, he was obstructed by the petitioner and his brother and the receiver reported that he was unable to obtain possession. He also sought for police aid to take possession of the property. On this, the court ordered notice to the obstructors and the petitioner filed C.M.P. No. 629 dated 11.2.1952 stating that the property belonged to his tarwad, that he was in independent possession ever since the death of the karnavan in 1105 and that the 1st plaintiff who was the widow of the karnavan had no rights to or possession of the property at any time. He prayed for upholding his possession and for discharge of the receiver, as he was not liable to be dispossessed in this suit. The plaintiff filed objections to this and after an elaborate enquiry C.M.P. No. 629 was dismissed. The petitioner preferred an appeal to the District Court which was dismissed on the short ground that the order passed by the trial court was not appealable. He has therefore preferred this Civil Revision Petition.

2. As the lower appellate court has not expressed any opinion on the merits, the only point for decision in this revision petition is whether the order passed by the trial court is an appealable one. As decisions on this point were not uniform the Civil Revision Petition was referred to a Division Bench for decision. The petitioner's case is that the order falls under R. 1(b) of O. XL of the Code of Civil Procedure which is as follows:

"(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 the 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 realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and 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 authorize the court to remove from the possession or custody of the property any person whom any party to the suit has not a present right so to remove."

R. 1(s) of O. XLIII provides that all orders under Rr.1 and 4 of the O. XL are appealable. R. 4 has no application here and the question is whether the order falls under R. (1) of O. XL.

3. This question arose for decision in Hudson v. Morgan (I.L.R. 36 Cal. 713) where a receiver was appointed in a mortgage suit and the appellant contended that he was not liable to be removed from possession. His objection was over-ruled and the court ordered that he be removed from possession. A preliminary objection raised by the respondent that no appeal lay was over-ruled, holding that the order was one under S.503(b) of the old Civil Procedure Code corresponding to R. (1) of O. XL. The following passage in the judgment can with advantage be extracted:

"As regards the preliminary objection taken on behalf of the respondents, we are of opinion that there is no substance in it. The order of the Subordinate Judge of the 11th December 1908, under which the receiver is authorised to remove Hudson and to take possession of the properties now in his custody, was undoubtedly made under S. 503, Cl. (b) of the Code of 18