T.K Joseph, J.:— This Civil Revision Petition has been preferred by one who is not a party to the suit. The plaintiff sued for recovery of possession of property from the defendants on the allegation that the same was leased to defendants 1 and 2 under a registered lease deed dated 20-11-1123. Defendants 1 and 2 contended that the lease did not come into effect and that they did not get possession of the property.
2. The plaintiff applied for the appointment of a receiver for the property and this was allowed by order dated 1-2-1952. When the receiver went to take possession, he was obstructed by the petitioner and his brother and the receiver reported that he was unable to obtain possession. He also sought for police aid to take possession of the property. On this, the Court ordered notice to the obstructors and the petitioner filed C.M.P No. 629 dated 11-2-1952 stating that the property belonged to his tarwad, that he was in independent possession ever since the death of the kamavan in 1105 and that plaintiff 1 who was the widow of the kamavan had no rights to or possession of the property at any time. He prayed for upholding his possession and for discharge of the receiver, as he was not liable to be dispossessed in this suit. The plaintiff filed objections to this and after an elaborate enquiry C.M.P No. 629 was dismissed. The petitioner preferred an appeal to the District Court which was dismissed on the short ground that the order passed by the trial Court was not appealable. He has therefore preferred this Civil Revision Petition.
3. As the lower appellate Court has not expressed any opinion on the merits, the only point for decision in this revision petition is whether the order passed by the trial Court is an appealable one. As decisions on this point were not uniform the Civil Revision Petition was referred to a Division Bench for decision.
4. The petitioner's case is that the order falls under R. 1(b) of O. 40 of the CPC, which is as follows:
“(1) “Where it appears to the Court to be just and convenient, the Court may by order—
(a) appoint a receiver of any property, whether before or after the decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver; and
(d) cooler upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application, and disposal of such rents and profits and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.
(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of the property any person whom any party to the suit has not a present right so to remove.”
5. Rule 1(s) of O. 43 provides that all orders under Rr. 1 and 4 of O. 40 are appealable. Rule 4 has no application here and the question is whether the order falls under R. 1 of O. 40.
6. This question arose for decision in — “R. Hudson v. J.P Morgan’, 36 Cal 713 (A), where a receiver was appointed in a mortgage suit and the appellant contended that he was not liable to be removed from possession. His objection was overruled and the Court ordered that he be removed from possession. A preliminary objection raised by the respondent that no appeal lay was overruled, holding that the order was one under Section 503(b) of the old CPC, corresponding to R. 1 of O. 40.
7. The following passage in the judgment can with advantage be extracted:
“As regards the preliminary objection taken on behalf of the respondents, we are of opinion that there is no substance in it. The order of the Subordinate Judge of 11-12-1908, under which the receiver is authorised to remove Hudson and to take possession of the properties now in his custody, was undoubtedly made under S. 503, Cl. (b) of the Code of 1882. That order is consequently appealable under S. 588, Cl. (24). It was not necessary for the appellant to challenge the order of 12-5-1903 by which the receiver was appointed. He was no party to that order, nor does it appear that he had any notice of it he was not affected by the proceedings for the appointment of a receiver, till the latter made an attempt to deprive him of possession of the disputed properties. As soon as there was an adjudication between him and the receiver as to the title of the latter to remove him from possession, he became entitled to question the validity of the adverse order. We must consequently overrule the preliminary objection and consider the case on the merits.”
8. This decision was followed by the High Court of Madras in — ‘Ramaswami Pillai v. Janald Animal’, AIR 1923 Mad 129 (B). That was a suit between the mother and the widow of a deceased person regarding title to the estate of the deceased. A receiver was appointed during the pendency of the suit and the appellant who was not a party to the suit filed an application asking that the Court should direct the receiver not to interfere with his rights in the crops on 200 acres of land which he had purchased from the widow. This application was dismissed and he filed an appeal.
9. It was held that when the Court refused to direct its officer, the receiver, not to interfere with the appellant's possession of the crops it in effect removed him from the possession or custody of the property and that order was one under R. 1(b) of O. 40. It was accordingly held that an appeal lay against the order.
10. Reliance was also placed by the appellant on a decision of the Patna High Court in — ‘Agabeg v. Mt. Sundari’, AIR 1918 Pat 301 (2)(C) which also followed the view held in 36 Cal 713 (A).
11. In — ‘Ramswarup v. Raghvmandan’, AIR 1924 Nag 165 (D), Baker, J.C followed the decisions in 36 Cal 713 (A) and AIR 1918 Pat 301 (2)(C).
12. The Patna High Court adopted this view in a later decision in — ‘Mt. Dulhin Sona Kuer v. Jamil Ahmad’, AIR 1918 Pat 668 (E).
13. Reference may also be made to a decision of the Allahabad High Court in — ‘Anandi Lal v. Ram Samp’, AIR 1936 All 495 (FB)(F). Sulaiman, C.J who delivered the opinion of the Full Bench held that the words “any person” in R. 1(b) of O. 40 were comprehensive to include parties as well as non-parties. It may be mentioned that the question in that case was whether the words “any person” would include parties to the suit.
14. Most of the decisions cited by the learned counsel for the respondent came up for consideration by the Federal Court in — ‘K.V Rayarappan Nayanar v. K.V.V Madhavi Amma”, AIR 1950 FC 140 (G). The point for decision in that case was whether an appeal would lie against an order removing a receiver. The appeal was from an order of the High Court of Madras which held that while R. 1 of O. 40, in express terms empowered the Court to appoint a receiver, no mention was made in the rule authorising it to remove him and that an appeal did not therefore he from such an order as it was outside the ambit of the rule. The Federal Court reversed this decision holding that an order removing a receiver was cue which was passed in exercise of the Court's powers under R. 1 of O. 40. Even though there was no express provision in the said rule empowering a Court to remove a receiver it was held that this power was implied in view of Section 16 of the General Clauses Act.
15. It was also pointed out by the Federal Court that while in certain cases appeals were limited only to certain specific orders passed under certain rules of the CPC, all orders made under O. 40, R. 1 have been made appealable under O. 43, R. 1(s). Reported decisions laying down the opposite view were disapproved. One of such cases was — ‘Ramaswarni Naidu v. Ayyalu Naidu’, AIR 1924 Mad 614 (H), which was relied on by the respondent. The following observation of the Federal Court is instructive:
“In — ‘Ramaswami Naidu v. Ayyalu Naidu (H)’ a similar opinion was expressed. There the order appealed against was one refusing to remove a person from his position as receiver. This distinction, however does not materially affect the question. In this case also no reference was made to Section 16 of the General Clauses Act.”
16. Reliance was placed by the respondent on the decisions in — ‘Eastern Mortgage and Agency Co., Ltd. v. Premananda Saha’, AIR 1916 Cal 824 (I) and — ‘A.U John v. Agra United Mills, Ltd.’, AIR 1931 All 72 (J). These decisions were referred to with disapproval by the Federal Court on the ground that effect was not given to Section 16 of the General Clauses Act. Another decision relied on by tile respondent is —‘Inderdco Narain Singh v. Gouri Shanker’, AIR 1918 Pat 364 (K). There is no discussion of the question of law or reference to decided cases, the question being disposed of in the following terms:
“A preliminary objection has been made that no appeal lies. This objection must be given effect to. Inderdeo Narayan was not a party to the suit and therefore he has no right of appeal to this Court. The appeals are therefore dismissed.’’
17. There is one decision of a Single Judge of this Court in — ‘Kochu Kumari… v. Krishnan Janardhanan…Counter Petitioner.’, AIR 1952 Trav-C 248 (L). This was a civil revision petition against an order refusing to remove a receiver. A preliminary objection was raised in that case that the revision was not competent as the order was appealable. This objection was overruled on the basis of the decision of the Patna High Court in — ‘Surchdra Nath v. Nagar Chand’, AIR 1947 Pat 418 (M). It was observed in that case:
“It is conceded that the right of appeal against an order refusing to discharge a receiver has not been expressly conferred by any of the clauses of O. 43, but it is contended that the right of appeal must be deemed to have been conferred by implication, because the authority which has power to appoint a receiver must also by implication be deemed to have power to remove, and if triers is a refusal to remove a receiver that refusal must have been ordered under the powers conferred by O. 40, R. 1. In my opinion, the best reply to this line of reasoning is offered in the case of — ‘A.U John (J)’, just referred to, in these words: “Where a right of appeal has to be expressly conferred by statute, it cannot be presumed to exist by recourse to a rule of analogy or a rule of logic.” I have, therefore, no hesitation in holding that this appeal cannot be entertained as an appeal.”
18. Fazl Ali, C.J relied on AIR 1931 All 72 (J), which was one of the cases expressly overruled by the Federal Court. In view of the decision of the Federal Court, the decision in — ‘Surendra Nath v. Nagar Chand (M)’ can no longer be considered good law. It may also be mentioned that the decision of the Federal Court was not brought to the notice of the learned Judge who decided — ‘Kochu Kumari… v. Krishnan Janardhanan…Counter Petitioner. (L)’. We therefore decline to follow that decision. Wo hold that the appeal before the lower appellate Court was competent. The lower appellate Court did not express any opinion on the merits of the case and we are therefore obliged to reverse the decision and remand the case. The Civil Revision Petition is allowed with costs and the case is remanded to the lower appellate Court for disposal on the merits.
19. Revision allowed.