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High Court of Allahabad
B.N. Sapru, J.
Joti Prasad – Appellant
Versus
Rameshwar Nath – Respondent
F.A.F.O. No. 213 of 1976
Decided On : Oct 23, 1986
Receiver - Civil Procedure - The court refused to appoint a Receiver under Order 40 Rule 1, CPC and made an order under Section 151, CPC, which was not appealable under Order 43 Rule 1 (s), CPC.
Fact of the Case:
The plaintiff had made an application for the appointment of a Receiver, but the trial court did not appoint one and directed the defendants to deposit a sum of Rs. 40 per month in Court, to be deposited six monthly.
Finding of the Court:
The court found that the order under appeal was not appealable under Order 43 Rule 1 (s), CPC, as it was not an order under Rule 1 or Rule 4 of Order 40 of the Code of Civil Procedure.
Issues: The main issue was the maintainability of the first appeal from order, with the objection raised by the respondent succeeding.
Ratio Decidendi: The court's decision was influenced by the fact that the order under appeal was not an order under Rule 1 or Rule 4 of Order 40 of the Code of Civil Procedure, and therefore not appealable under Order 43 Rule 1 (s), CPC.
Final Decision: The appeal was dismissed with no order as to costs.
B.N. Sapru, J.
1. THIS is an appeal by the defendant.
2. THE plaintiff in the suit, which is still pending, had made an application for appointment of a Receiver. THE trial court did not appoint a Receiver but directed the defendants to deposit a sum of Rs. 40/- per month in Court. THE amount was to be deposited six monthly. THE first deposit was ordered to be made by 18-3-1976. Aggrieved, the defendants have filed the present first appeal from order.
3. IN the appeal, by an interim order dated 7-1-1977, the operation of the order of the trial court dated 27-2-1976, which is appealed against, was stayed.
4. THERE is an objection by the respondent to the maintainability of the first appeal from order. The submission is that the order under appeal is not an order under Rule 1 or Rule 4 of Order 40 of the Code of Civil Procedure for it is only such an order which is appealable. The plaintiff had sought the appointment of a receiver under Order 40 Rule 1, CPC. The Court refused' to appoint a Receiver but it appears to have made an order under Section 151, CPC which order is not appealable under Order 43 Rule 1 (s), CPC.
5. THE objection raised by the respondent succeeds.
6. THE appeal is accordingly dismissed. There will be no order as to costs. Appeal dismissed.
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