In this case one Rangaswami Naidu died leaving an estate behind him and the present rival claimants to the estate are his mother claiming under an alleged will of his and his widow claiming a widow's estate. The mother brought a suit against the widow to recover possession of the estate from her and she applied to have a Receiver appointed for the purpose of taking possession of the properties belonging to the estate. What we are concerned with in this appeal is the crops standing on about 200 acres of the land which the appellant before us says has been sold to him by the widow by a registered sale deed. He alleges that he removed crops on a portion of the land and when he was going to remove the crops on the remaining portion the Receiver appointed in this case came up and prevented him from doing so. It may be noted here that this sale was prior in date to the filing of the suit and of course prior to the appointment of the Receiver. He thereupon filed an application to the Court asking that the Court should direct its Receiver not to interfere with his rights in the crops and not to obstruct him in cutting and removing the crops which he had purchased. He filed an affidavit in support of his application in which he asserted his right under the alleged sale which he had obtained from the widow and also produced the sale deed in Court. The lower Court without taking any evidence on the matter and without even giving an opportunity to the other side to file a counter affidavit dismissed his application holding that prima facie the sale was not one likely to have been entered into by a prudent man when there was a certainty of a prolonged and costly litigation resulting from it and his application was refused. It is against that order that the appeal before us, C. M. A. No. 314 of 1921 has been filed.
A preliminary objection is raised by the respondents' vakil that no appeal lies. The right of appeal is sought to be supported by the other side under the O. 43, R. 1, Cl.(s) which says “that an appeal shall lie from an order under R. 1 or R. 4 of O. 40 “ so that if the present order appealed against is an order under R. 1, there is clearly a right of appeal granted by that rule. Cl. (b) of O. 40, R., 1, says:—
“The Court may by order remove any person from the possession or custody of the property.”
It is urged 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 an appeal lies. We think this argument is correct; for clearly the effect of the order is what is mentioned in cl. (b). When property of a third party is interfered with by an officer of the Court like the Receiver the party has ordinarily two remedies. He may apply to the Court for a summary order restraining the Receiver from interfering or he may ask leave of the Court to permit him to sue the Receiver and restrain him from interfering and for any other appropriate relief. In this case the party has adopted the summary remedy and we think that the order passed by the Court is clearly an order falling under cl. (b). This view is supported by the ruling of a Bench of the Calcutta High Court in Hudson v. Morgan, where the matter was considered at length and also by a ruling of the Patna High Court in Agabeg v. Musamat Sundari, where the Calcutta case has been quoted and followed. We must therefore overrule the objection that no appeal lies and proceed to hear the appeal.
On the merits of the case, it seems to be clear that the order of the Subordinate Judge is opposed to Cl. 2 of O. 40, R. 1. The sale to the appellant was as already stated before the suit was brought and therefore it could not be attacked as a sale pendente lite. If on evidence adduced by the plaintiff the Court could come to the conclusion that the sale was only a nominal transaction and was not intended to pass the property, it would no doubt be a case falling under the exception in Cl. 2, because in that case the property will be one from the possession of which one of the parties would have a present right to remove the appellant, otherwise we think that the present case falls under the main Cl. 2, for by the registered sale, if it is a good sale the defendant will be bound and so far as the plaintiff is concerned, it cannot be said that she has got a present right to remove the appellant from possession because her right has yet to be established in the suit; and it is only when it is proved that she and not the widow has a present title to the property that she can have any right whatever to remove the appellant from possession. The case has been disposed of very summarily by the lower Court and as the respondent here asks for an opportunity to show that the sale is a nominal transaction and was not intended to pass property at all, we cannot dispose of the matter at once.
We therefore set aside the order of the lower Court and send the case back to that Court to have the question tried as to whether the sale is a nominal transaction or not and to dispose of the application according to law.
Costs will follow the result.
S. S.Order set aside: case sent back.