The main legal point established in the judgment is the appealability of an order for the appointment of a receiver before a specific person is selected and appointed as such receiver, under Order XLIII, Clause S of Order 40, Rule 1.

Srinivasa Aiyangar, J.

1. The substantial question referred to us for determination is whether an order determining that it is just and convenient to appoint a receiver, i.e., an order for the appointment of a receiver, and before a particular person is selected and appointed as such receiver, is appeal able.

2. The right of appeal is conferred by Clause S of Order XLIII which provides inter alia that an appeal shall lie from an order under Rule 1 of Order XL; and that rule, omitting the portions not material for the present purpose, is in these terms "where it appears to the Court to be just and convenient the Court may by order (a) appoint a receiver." The question is whether the order referred to above is an order under this rule.

3. When an application is made for the appointment of a receiver, the most important question for determination is whether it is just and convenient to appoint a receiver in the circumstances, and if the Court comes to the conclusion, that it is not shewn to be just and convenient to appoint a receiver, it must dismiss the application. This determination is made under rule I, and there can be no doubt that that order is appealable. It was so decided in Venkatasami v. Stridevamma (1887) I.L.R. 10 Mad. 179 on the construction of the corresponding provision of the old code and as pointed out in Cursetji v. Gangaram (1915) 17 Bom. L.R. page 680, the same construction must be placed on the similar provision in the New Code. The same view has been adopted in Allahabad in the recent case of Muni Lal v. Jagan Nath (1916) 33 I.C. 735, But these decisions do not throw much light on the present question for it can easily be contended that orders declining to appoint a receiver and orders appointing a receiver are exhaustive of the category of orders contemplated by Rule 1, as the discretionary power to appoint a receiver, conferred by that rule, includes the power to reject an application for such appointment and nothing more. This was apparently the view taken by the learned judges of the Bombay High Court in Cursetji v. Gangaram (1915) 17 Bom. L.R. page 680. The above rulings however emphasize the fact that the right of the appeal is not restricted to any particular kind of order under Rule 1 and an appeal lies against all orders under that rule.

4. That an order determining, that it is just and convenient to appoint a receiver, is an order, can I think scarcely admit of doubt; and the practice of the English Courts by which first an order is made for the appointment of a receiver in Court leaving the selection of the person to be appointed to be settled in chambers, is conclusive of the question. The determination is I think more than a mere interlocutory statement if that phrase means, an expression of opinion, for there can be no doubt that the Court which determined that it was necessary to appoint a receiver cannot change it of its own accord without a review or other proper proceeding. I also think that the Subordinate Judge in this case on his, determination that a receiver should be appointed was entitled to issue an order. In Nothard v. Proctor (1875) L.R. 1 Ch. D. p. 4, the order appealed against appears to be an order for the appointment of a receiver and not an order appointing a particular person as receiver and no question was raised that it was not a judgment or order. If it is an order, the order is certainly one under Order 40, Rule 1 as the Court determines the question of the necessity for the appointment of a receiver under this order. Reference was made to Section 94 of the Code as conferring the power to appoint a receiver, but it is to be observed that that power can be exercised only if rules provide for such exercise and in accordance with those rules.

5. Even if I am wrong in this, and if the orders under Order 40, Rule 1, can only be of 2 classes, one rejecting applications for receivers, and the other, orders appointing receivers, I agree with the contention of the learned Ad