JUDGMENT

R.S. Pathak, J. - This is a plaintiff's appeal against an order of the learned Civil Judge, Farrukhabad directing that the remuneration of the Receiver should be met from the profits of the property in suit, and the deficiency, if any from one of the defendants personally.

2. Original suit No. 42 of 1958 was filed by the appellant for a declaration that he was the sole proprietor of the cattle market and for an injunction restraining his brothers from interfering with his possession and management of the market. One of the two brothers was Attat Mand Khan. During the pendency of the suit Attat Mand Khan applied for the appointment of a Receiver, and it appears that on May 17, 1951 an order was made by the trial court appointing one Shafiqur Rahman as Receiver. At a later stage of the litigation, another order was made by the trial court on November 16, 1966 appointing Shri K. B. Hajela as Receiver in place of Shafiqur Rahman. His remuneration was fixed at 4% of the income from the share of Attat Mand Khan in the property. On December 2, 1956 the trial court modified the order and fixed the remuneration of the Receiver at Rs. 401- per day for each day on which he worked and directed the amount to be paid by Attat Mand Khan. Upon an application by Attat Mand Khan for modification of that order, the trial court passed an order on December 7, 1956 directing that the remuneration of the Receiver should be recovered in the first instance from a one-third part of the income of the market, and in case it was found that the one-third part did not suffice to cover the same the deficiency should be made good by Attat Mand Khan personally. Against that order the present appeal has been filed.

3. At the outset, the first question is whether the appeal is maintainable. It is clear from the facts enumerated above that the order under appeal is an order determining the source from which the remuneration of the Receiver has to be paid. It seems to us that the order is one falling under Rule 2 of Order 40 of the Code of Civil Procedure. Under Order 43, Rule 1 (5) of the Code, it is only an order under Rule 1 or Rule 4 of Order 40 which is appealable. No appeal has been provided against an order under Rule 2.

4. It has been urged on behalf of the appellant that in every case where an order directs payment of the remuneration of the Receiver from out of the estate in respect of which the Receiver is appointed it is an order made under Rule 1 of Order 40. We think not, merely because the source of payment of the Receiver's remuneration is the estate itself does not, in our opinion, make the order one under Rule 1 of Order 40. The order is still one under Rule of Order 40.

5. In Thomas Cunlif Tweedie v. Pokea Khatun, AIR 1915 Calcutta 74 a Receiver was appointed by the Calcutta High Court but the Court did not actually appoint a person to that office. When the case was taken up by the trial court, one Mr. Tweedie was appointed Receiver. The trial court, while appointing Mr. Tweedie as receiver added the direction that he would get by way of remuneration 122%0 out of the amount actually collected by him. Against that order, an appeal was filed to the High Court. It was urged that inasmuch as the remuneration was to be paid out from the property in charge of the Receiver, the order was one under Rule I (d) of Order 40 and, therefore, an appeal lay. The contention was repelled by Carnduff, J. who observed :

"I cannot yield to the contention that an order finding the amount of remuneration can be taken out of Rule 2, and brought within Rule 1 (d) because it involves "the application and disposal of the rents and profits". Clearly, it is only out of these that such remuneration is ordinarily, if not invariably, provided. That being so, no appeal would lie."

Richardson, J. agreed and observed :

"The contention that the order in question is an order under Cl. (d) , Rule 1, Order 40, conferring on the receiver a. power as to the application and disp