1979 Supreme(MP) 486

IN THE HIGH COURT OF MADHYA PRADESH
S.R. VYAS, J.
Radheshyam - Applicant
Versus
Ghasi - Non-Applicant
C. Revn. No. 158 of 1977 (I)
Decided On : 04-10-1979

Headnote:Civil Procedure Code, 1908 - O. 40, R.1 and O.43, R.1 (s) - appointment of a receiver - unless a particular person appointed a receiver - order not appealable under Order 43, rule 1 CPC.

       Short Note

       1. The applicant Radheshyam instituted a suit against the non - applicants for an order of perpetual injunction and prayed that the non - applicants be restrained from installing an electric motor - pump and draw water from for irrigating his fields. The plaintiff's allegations were that the well from which the water is being drawn was situated on Survey No. 610. which he had purchased from the recorded holder on 19 - 6 - 1972. Another Survey No. 1928 was also included in the said sale - Geed. On Survey No. 1328 there was a well and a part of this Survey number was purchased by the defendant - non - applicants 1 to 3 from the owner. Disputes arose between the parties with regard to the drawing of water for irrigating their fields from the well on Khasra No. 1328 as according to both the parties the other party was drawing water much in excess of its requirement. In the suit filed on the aforesaid allegations the applicant filed an application under O. 39, rules 1 and 2, CPC to restrain the other party from drawing water. The trial Court by its order dated 18 - 8 - 1975 directed that both the parties shall draw water by rotation so that the fields 'of both the parties may be irrigated. Disputes even thereafter arose between the parties with regard to the period of drawing water and the quantum of water drawn from the well. The trial Court, therefore, by an order dated 31 - 10 - 1977 directed appointment of Receiver so that the Receiver could regulate the drawl of water from the well for the irrigation of the fields of both the parties. However, no particular person was appointed Receiver by the said order. Subsequently on 24 - 2 - 1978 one Goverdhansingh, an officer of the Court, was appointed as a Receiver with the consent of both the parties. Against the order passed order regarding the desirability for appointment of a Receiver of the disputed well. This appeal was allowed by the impugned order. it is the correctness of this order that is challenged in this revision application.

       2. The learned counsel for the applicant contended that the order dated 31 - 10 - 1977 was not an appealable older and that in view of the subsequent order passed on 24 - 2 - 1978 for the appointment of a particular person as a Receiver with the consent of both the parties, the non - applicants 1 to 3 had no right to challenge, he impugned order passed on 31 - 10 - 1977.

       3. Learned counsel for the non - applicants 1 to 3, however, urged that the appeal was quite competent and for the reasons given by the appellate Court the order passed on 31 - 10 - 1977 could not be maintained.

       Held: According to the provisions of O. 40, rule 1. CPC, it is competent for a Court to appoint a Receiver as and when it thinks just and convenient. Clause (S), rule 1 of O. 43, CPC provides for an appeal against an order passed under O. 40, rule 1 for the appointment of a Receiver. The question as to whether in a case where the Court decides to appoint a Receiver but no actual appointment of a particular person is made as a Receiver does such an order becomes appealable, has been considered in Mst. Chandrasena v. Raoji (A. 1. R. 1934 NAG. 64). Though other High Courts have taken the view that even if without appointment of any particular person as a Receiver the Court expresses an opinion that a Receiver should be appointed the order becomes appealable under O. 43,R. 1 (s). But the view of this Court as referred to above is that such an order is not appealable unless and until any particular person is appointed as Receiver. Learned counsel for the non - applicants 1 to 3 urged that in view of the different opinions expressed by other High Courts on this question, the matter should be referred to a larger Bench. But in the light of the clear provisions of O. 40, R. 1 and O. 43, R. 1 (s), this Court thinks that there is no' need for reference of this question to larger Bench.

       4. Unless any particular person is appointed as a Receiver of any property under rule 1 of Order 40, the said order would not become appealable under Clause (s) of R. 1 of Order 43, CPC, this Court, therefore, has no reason to refer this matter to a larger Bench. Revision allowed.