An appeal does not lie from an order dismissing an application for appointment of a receiver under Order 40 Rule 1 of the Code of Civil Procedure as it lacks explicit authorization in the law.

JUDGMENT :

This appeal is filed challenging the order dated 12.04.2024 dismissing an application in I.A.No.12 of 2023 in O.S.No.40 of 2018 of the Subordinate Judges Court, Mavelikara, under Order 40 Rule 1 of the Code of Civil Procedure, 1908 for appointing a receiver. Appellant was the petitioner in the I.A. and plaintiff in the O.S. Respondents were the counter petitioners in the I.A. and defendants in the O.S.

2. The original suit was filed by the appellant/plaintiff in a representative capacity for framing a scheme for the smooth administration of the family trust and its temple. According to the appellant/plaintiff, the administration of the family trust as well as the family temple ought to be in accordance with the provisions of two deeds, namely, Nischayapathram of 1081 ME and registered Udambadi of the year 1977. The administration has to be carried out by the members of the Thavazhi line. Since the majority of family members are scattered all over Kerala by the passage of time, according to the appellant/plaintiff, administration of the temple and the trust had been usurped by some people who were connected to the temple and trust by way of marriage and from the paternal line. The plaintiff alleges that the existing Administrative Committee has failed to manage the assets and properties of the trust and the temple as per the provisions of the above referred registered deeds. The appellant/plaintiff thus filed the suit for framing a scheme as aforesaid as well as I.A.No.12 of 2023 invoking Order 40 Rule 1 seeking to appoint a receiver. The learned Sub Judge dismissed the IA and the said order of dismissal is challenged in this appeal.

3. A counter affidavit was filed by the 6th respondent contending that the appeal is not maintainable as no appeal would lie from an order dismissing the application under Order 40 Rule 1 and hence the FAO is only to be dismissed. The appellant has filed a reply affidavit refuting the said contention.

4. Heard Sri.T.Sivadasan, Advocate for the appellant and Dr.V.N. Sankerjee, Advocate for respondents 1, 2, 3 and 6.

5. Since the maintainability of the appeal itself is contested, the said question has to be considered at the threshold. Both counsel addressed me in detail regarding the said question of maintainability. The learned counsel appearing for the appellant contended that an order refusing to appoint a receiver falls under Order 40 Rule 1 and hence such order is appealable under Order 43 Rule 1 (s) of the CPC. It is contended that all orders passed under Order 40 Rule 1 are made appealable and it has not been stipulated nor is it the scheme of Order 43 that certain orders alone are appealable. Order 40 Rule 1 comes under the category of cases where all orders made thereunder have been made appealable. Further, it is contended that Section 16 of the GENERAL CLAUSES ACT provides that the power to appoint includes the power to remove or dismiss and therefore the right to appeal against an order of appointment of receiver must take in the right of appeal against an order of dismissal of application for appointment of the receiver also. It is thus contended that the preliminary objection raised in the counter affidavit against the maintainability of the appeal is only to be rejected and the appeal held to be maintainable under Order 43 Rule 1 (s) of the CPC. The learned counsel placed reliance on the dictum laid down by this Court in Ryru Nair v. Govindan Nair [ 1960 KLT 955 ] and Shah Babulal Khimji v. Jayaben D. Kania and another [ AIR 1981 SC 1786 ]