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2025 DIGILAW 1309 (KER)

Remadevi, D/o. Meenakshi Channatty v. Daivapurackal Bhagavathy Temple, Meenathu Muri, Vallikkunnam

2025-05-21

SYAM KUMAR V.M.

body2025
JUDGMENT : This appeal is filed challenging the order dated 12.04.2024 dismissing an application in I.A.No.12 of 2023 in O.S.No.40 of 2018 of the Subordinate Judges Court, Mavelikara, under Order 40 Rule 1 of the Code of Civil Procedure, 1908 for appointing a receiver. Appellant was the petitioner in the I.A. and plaintiff in the O.S. Respondents were the counter petitioners in the I.A. and defendants in the O.S. 2. The original suit was filed by the appellant/plaintiff in a representative capacity for framing a scheme for the smooth administration of the family trust and its temple. According to the appellant/plaintiff, the administration of the family trust as well as the family temple ought to be in accordance with the provisions of two deeds, namely, Nischayapathram of 1081 ME and registered Udambadi of the year 1977. The administration has to be carried out by the members of the Thavazhi line. Since the majority of family members are scattered all over Kerala by the passage of time, according to the appellant/plaintiff, administration of the temple and the trust had been usurped by some people who were connected to the temple and trust by way of marriage and from the paternal line. The plaintiff alleges that the existing Administrative Committee has failed to manage the assets and properties of the trust and the temple as per the provisions of the above referred registered deeds. The appellant/plaintiff thus filed the suit for framing a scheme as aforesaid as well as I.A.No.12 of 2023 invoking Order 40 Rule 1 seeking to appoint a receiver. The learned Sub Judge dismissed the IA and the said order of dismissal is challenged in this appeal. 3. A counter affidavit was filed by the 6th respondent contending that the appeal is not maintainable as no appeal would lie from an order dismissing the application under Order 40 Rule 1 and hence the FAO is only to be dismissed. The appellant has filed a reply affidavit refuting the said contention. 4. Heard Sri.T.Sivadasan, Advocate for the appellant and Dr.V.N. Sankerjee, Advocate for respondents 1, 2, 3 and 6. 5. Since the maintainability of the appeal itself is contested, the said question has to be considered at the threshold. Both counsel addressed me in detail regarding the said question of maintainability. 4. Heard Sri.T.Sivadasan, Advocate for the appellant and Dr.V.N. Sankerjee, Advocate for respondents 1, 2, 3 and 6. 5. Since the maintainability of the appeal itself is contested, the said question has to be considered at the threshold. Both counsel addressed me in detail regarding the said question of maintainability. The learned counsel appearing for the appellant contended that an order refusing to appoint a receiver falls under Order 40 Rule 1 and hence such order is appealable under Order 43 Rule 1 (s) of the CPC. It is contended that all orders passed under Order 40 Rule 1 are made appealable and it has not been stipulated nor is it the scheme of Order 43 that certain orders alone are appealable. Order 40 Rule 1 comes under the category of cases where all orders made thereunder have been made appealable. Further, it is contended that Section 16 of the General Clauses Act provides that the power to appoint includes the power to remove or dismiss and therefore the right to appeal against an order of appointment of receiver must take in the right of appeal against an order of dismissal of application for appointment of the receiver also. It is thus contended that the preliminary objection raised in the counter affidavit against the maintainability of the appeal is only to be rejected and the appeal held to be maintainable under Order 43 Rule 1 (s) of the CPC. The learned counsel placed reliance on the dictum laid down by this Court in Ryru Nair v. Govindan Nair [ 1960 KLT 955 ] and Shah Babulal Khimji v. Jayaben D. Kania and another [ AIR 1981 SC 1786 ] and contended that it has been unequivocally held that the order refusing to appoint a receiver is only a counter part of an order appointing a receiver and therefore, such an order refusing to appoint a receiver will fall under Order 40 Rule 1 equally as an order appointing a receiver. The learned counsel for the appellant thus contended that the FAO is maintainable and that the Sub Court had erred in dismissing the application for appointing a receiver. The learned counsel for the appellant thus contended that the FAO is maintainable and that the Sub Court had erred in dismissing the application for appointing a receiver. On the merits of the matter, there has been a total non-compliance of the ‘panch sadachaar’ to be complied with while appointing a receiver as laid down in T. Krishnaswamy Chetty v. C. Thangavelu Chetty and others [ AIR 1955 Mad 430 ], submits the learned counsel. Reliance is also placed on the dictum laid down by this Court in Mary and others v. Biju Sebastain [ 2010 (3) KHC 189 ]. 6. Per contra, the contention put forth by the learned counsel appearing for respondents 1, 2, 3 and 6 is short and concise. An appeal is a statutory remedy. No appeal will lie when there is no specific provision providing for such appeal. The order impugned in this FAO is one passed under Order 40 dismissing the application for appointment of a receiver. Order 43 Rule 1 (s), which enumerates exhaustively appealable orders, provides that an appeal shall lie from an order under Rule 1 or Rule 4 of Order 40. Order 40 Rule 1 enumerates the powers of the court with respect to and in furtherance of the appointment of a receiver. Order 40 Rule 4 concerns the enforcement of the receiver's duties. Thus an order dismissing the receiver application does not fall under Order 43 Rule 1 (s) of the CPC and is hence not appealable. It was thus prayed that the appeal is not maintainable and hence may be rejected or dismissed. Reliance is also placed on the dictum laid down by the Hon’ble Supreme Court in Smt. Ganga Bai v. Vijay Kumar and others [ (1974) 2 SCC 393 ] and on the Full Bench decision of this Court in Sadasivan K. v. Surendradas [ 2020 (5) KHC 461 ]. Reference is also made to the judgments in Pareed Master v. Antony [1987 KHC 548]; Saseendran v. Sadanandan [2003 KHC 1172]; and Narayanan V. Narayani [1954 KHC 227]. As regards the merits, the learned counsel submitted that the rejection of the I.A. was after due consideration of all essential facets including the ‘paanch saddachar’ as laid down in T.Krishnaswamy Chetty (supra) and as followed by this Court in Mary (supra). 7. I have heard both sides in detail and have considered the contentions put forth. As regards the merits, the learned counsel submitted that the rejection of the I.A. was after due consideration of all essential facets including the ‘paanch saddachar’ as laid down in T.Krishnaswamy Chetty (supra) and as followed by this Court in Mary (supra). 7. I have heard both sides in detail and have considered the contentions put forth. The question of maintainability being the main bone of contention, I proceed to consider the same at the very threshold. 8. Appellant has filed this appeal invoking Section 104 with Order 43 Rule 1 (s) of the CPC. Order impugned in this appeal is one dismissing an application filed under Order 40 Rule 1 seeking appointment of a receiver. For easy reference, the relevant provisions are reproduced hereunder: Order 43 Rule 1 (s) of the CPC “ 1. Appeal from orders An appeal shall lie from the following orders under the provisions of Section 104, namely :-- ….... (s) an order under Rule 1 or Rule 4 of Order XL ; ….” Order 40 Rule 1 and Rule 4 of the CPC read as follows: Order 40 Rule 1 of the CPC: “1. Appointment of receivers (1) Where it appears to the Court to be just and convenient, the Court may by Order- (a) appointment a receiver of any property, whether before or after 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) confer 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 those powers as the Court thinks fit. (2) Nothing in this rule shall authorise the court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.” Order 40 Rule 4: “4. (2) Nothing in this rule shall authorise the court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.” Order 40 Rule 4: “4. Enforcement of receiver's duties Where a receiver- (a) fails to submit his accounts at such periods and in such form as the Court directs, or (b) fails to pay the amount due from him as the Court directs, or (c) occasions loss to the property by his wilful default or gross negligence, the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from his or any loss occasioned by him, and shall pay the balance (if any) to the receiver.” Dr.Sankarjee submits that a bare reading of Order 43 Rule 1 (s) reveals that it envisages an appeal only from Order 40 Rule 1 and 4, and hence when the application seeking appointment of a receiver is dismissed, no appeal would lie under Order 43 Rule 1 (s). This he explains further is because Order 40 Rule 1 stipulates only the ‘appointment of receivers’. Thus when a party is aggrieved by an order ‘appointing a receiver’, an appeal would lie under Order 43 Rule 1 (s). No such appeal would lie under Order 43 Rule 1 (s) from an order dismissing such an application for ‘appointment of a receiver’. This contention is anchored on the fundamental legal principle that an appeal is a statutory remedy and no appeal would lie when there is no specific provision providing for such an appeal. Thus there should be an explicit authorisation to prefer an appeal and if a specific Section or provision of the relevant law does not provide for an appeal against a particular order or decision, then there is generally no right to appeal. 9. Thus there should be an explicit authorisation to prefer an appeal and if a specific Section or provision of the relevant law does not provide for an appeal against a particular order or decision, then there is generally no right to appeal. 9. Sri.Sivadasan, for the appellant vehemently objects to the above contention, pointing to the dictum laid down in Ryru Nair (supra) wherein following the dictum of the Federal Court in Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Valia Madhavi Amma and others [1949 SCC OnLine FC 34] and terming the dictum in Surendra Nath Sarkar v. Nagar Chand Goenka and another [AIR 1947 Patna 418] as no longer a good law, it was held by this court as follows: “Now I shall give my reasons for the above view. The order refusing to appoint a receiver is only a counterpart, if I may use that expression, of an order appointing a receiver. Therefore, such an order refusing to appoint a receiver will fall under Order 40, Rule 1 equally as an order appointing a receiver and I do not think that there will be any dispute to this position. Similarly, to my mind, it is clear that an order discharging a receiver and an order refusing to discharge a receiver are but the obverse and the reverse of the same coin, and if the former falls under Order 40 Rule 1 under the Federal Court ruling, I fail to understand how the latter does not fall under the same Order 40 Rule 1. If the order of refusal falls under Order 40 Rule 1, , naturally that order becomes appealable because all orders under Order 40, rule 1 are appealable under Order 43 rule 1 (s).” (Emphasis added) Banking heavily on the above dictum in Ryru Nair (supra), the learned counsel contended that the question whether an appeal would lie from an order of dismissal of an application under Order 40 Rule 1 is no longer res integra. The learned counsel pointed out that in Rayarappan Nayanar (supra), the Federal Court while considering the question whether an appeal lies against an order removing a receiver, opined as follows: “The statute has codified the well-understood rule of general law, as stated by Woodroffe on Receivers, edition 4, that the power to terminate flows naturally and as a necessary sequence from the power to create. In other words, it is a necessary adjunct of power of appointment and is exercised as an incident to or consequence of, that power; the authority to call such officer into being necessarily implies the authority to terminate his functions when their exercise is no longer necessary or to remove the incumbent from an abuse of those functions or for other causes shown. The legislature instead of saying in Order 40 rule 1 that the court will have the power to appoint, suspend or remove a receiver simply enacted that wherever convenient the court may appoint a receiver and it was implied within that language that it may also remove or suspend him. If Order 40 rule 1 CPC is read along with the provisions above mentioned then it follows by unnecessary implication that the order of removal falls within the ambit of that rule and once that decision is reached it becomes expressly appealable under the provisions of Order 43 rule 1 (s)” Heavy reliance is also placed on the following observation of the Federal Court in Rayarappan Nayanar (supra): “Order 40 Rule 1 falls in the category of cases where all orders made under it have been made appealable and it has not been said that the only order appealable is the one appointing a receiver. Whenever an order can be brought within the purview of Order 40 Rule 1, it at once becomes appealable under the provisions of Order 43 Rule 1 (s). This, according to the learned counsel, confirms that the FAO is maintainable. Reliance is placed on Section 16 of the General Clauses Act and attention is invited to the following observation relating to the same in Rayarappan Nayanar (supra): “The General Clauses Act has been enacted so as to avoid superfluity of language in statutes wherever it is possible to do so. Section 16 has codified the well-understood rule of general law that the power to terminate flows naturally and as a necessary sequence from the power to create in other words It is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of the power. Section 16 has codified the well-understood rule of general law that the power to terminate flows naturally and as a necessary sequence from the power to create in other words It is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of the power. The authority to call an officer into being necessarily implies the authority to terminate his functions when their exercise is no longer necessary, or to remove the incumbent from the abuse of those functions or for other causes shown.” The learned counsel also attempts to extend the above principle to apply to situations where an application for appointment of a receiver has been dismissed by the court. The learned counsel endeavoured to further buttress this contention by relying on the dictum laid down by the Supreme Court in Shah Babul Khimji (supra). In the said case, the plaintiff had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suit property and injuncting the defendant from disposing of the suit property during pendency of the suit. The Single Judge of the High Court after hearing the notice of motion had dismissed the said application. The plaintiff therefore filed an appeal before the Division Bench of the High Court. The Division Bench of the High Court held that the order of the Single Judge refusing to appoint a receiver and to grant an injunction could not be construed to be a ‘judgment’ as contemplated by Clause 15 of the letters patent. Being aggrieved thereby, the plaintiff had approached the Supreme Court. The Division Bench of the High Court held that the order of the Single Judge refusing to appoint a receiver and to grant an injunction could not be construed to be a ‘judgment’ as contemplated by Clause 15 of the letters patent. Being aggrieved thereby, the plaintiff had approached the Supreme Court. It was held that an appeal would lie from an order refusing to appoint a Receiver and it was reasoned as follows: “An order of the trial judge refusing to appoint a receiver or to grant an ad interim injunction is undoubtedly a judgment within the meaning of the letters patent both because Order 43 Rule 1 applies to internal appeals in the high court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of clause 15 of the letters patent.” The learned counsel also pointed to the judgment of this Court dated 30.11.2015 in FAO No.182 of 2015 [ K. Sandhya and others v. K.K. Sivakumar and others (2015) SCC OnLine Ker 36512] and contended that the practice followed by this Court to entertain appeals under Order 43 Rule 1 (s) from orders dismissing application filed under Order 40 Rule 1. Thus according to the learned counsel, the practice followed by this Court also favoured an affirmation of the maintainability question. 10. Dr.Sankerjee stoutly counters the contention put forth based on Section 16 of the General Clauses Act by arguing that the principle underlying Section 16 of the General Clauses Act has nothing to do with the right of appeal. He submits that where a right of appeal has to be expressly conferred by a statute, it cannot be presumed to exist by recourse to a rule of analogy or a rule of logic. He relies on Sadasivan (supra), where in the context of Order 38, a Full Bench of this Court while holding that an appeal is not maintainable when there was no order of conditional attachment passed by court below to make it an order under Rule 6 (2) of Order 38, opined as follows: “Needless to mention, right of appeal must be expressly given by a statute, and it shall not be assumed that there is a right of appeal in every matter which comes under the consideration of a court. Right of appeal is not a natural right or common law right. Such right must be given by the statute concerned. Insofar as the right of appeal against a decree or order is concerned, it is a creature of the code.” (Emphasis added) The Full Bench in Sadasivan (supra), also quoted with approval the following dictum laid down in Ohene Moore v. Akesseh Tayee [ AIR 1935 PC 5 ] regarding appeal being a creature of statute: “There is an inherent right in every person to bring a suit of a civil nature, and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. A suit for its maintainability requires no authority of law, and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. (Emphasis added) The following findings in Sadasivan (supra), concerning the mandatory insistence in CPC that appeal shall only lie from orders specifically mentioned and listed in the relevant provision is also heavily relied on by Dr. Sankerjee: “21. So, there cannot be any misconception regarding the right of appeal. Order XLIII R.2 explicitly says that the rules of Order XLI of the Code shall apply, so far as may be, to appeals from orders. 22. In this context, it is worthwhile to mention about S.104 of the Code. It says that an appeal shall lie from the orders mentioned in the Section, and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders. In sub-section (1) to S.104, a list of appealable orders has been specifically shown. The words "save as otherwise expressly provided in the body of this Code or by any law for the time being in force" occurring in S.104 of the Code were not there in Act XIV of 1882. S.104 and Order XLIII R.1 of the Code together specify a full list of appealable orders. Stated differently, no other order passed in a suit or proceeding can be challenged in an appeal. S.104 and Order XLIII R.1 of the Code together specify a full list of appealable orders. Stated differently, no other order passed in a suit or proceeding can be challenged in an appeal. On a conjoint reading of these provisions, it will be clear from clause (i) of S.104(1) that these provisions are complementary to each other, as it is specifically mentioned in the above clause that any order made under the Rules, from which an appeal is expressly allowed by the Rules, also should be treated as orders from which appeal could be laid. 23. When we look at Order XLIII R.1A of the Code, it is seen that where any order, other than those mentioned in R.1, is made against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. It is pellucid that orders from which appeal lies are clearly mentioned in S.104 and Order XLIII R.1 of the Code; any other order made against a party and thereupon any judgment is pronounced against such a party, he may take up a specific ground, by challenging the order in the memorandum of appeal, to be filed against the decree by invoking S.96 read with Order XLI R.1 of the Code. On a close look at S.104 and Order XLIII R.1, it can be seen that only a limited number of orders, allowable in a suit or proceeding, alone are made appealable. Rest of the orders can be challenged in a regular appeal filed against the decree, as provided under R.1A of Order XLIII of the Code. For example, under Order XLIII R.1(c), an order passed under Order IX R.9 of the Code rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit is appealable. It is pertinent to note that an order passed under the above provision allowing an application for an order to set aside the dismissal of a suit is not made appealable at the instance of the defendant. It is pertinent to note that an order passed under the above provision allowing an application for an order to set aside the dismissal of a suit is not made appealable at the instance of the defendant. Likewise, under clause (d) of Order XLIII R.1, an order under R.13 of Order IX of the Code rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte is appealable at the instance of a defendant. On the contrary, if such an application is allowed against the plaintiff in the suit, then he cannot file an appeal under Order XLIII R.1 of the Code. There are ever so many situations wherein the Code has not conferred a right of appeal, mainly considering the impact of the orders on the rights of the respective parties. In short, nobody can contend that all orders passed in a suit or proceeding should be regarded as appealable. As mentioned earlier, the right of appeal is creation of a statute and it cannot be assumed in favour of any party. The law takes care of the interest of parties who suffer orders, not falling within S.104 and Order XLIII R.1 of the Code, by providing a safety valve in Order XLIII R.1A.” (Emphasis added) 11. I find merit in the contention put forth by Dr.Sankerjee based on the above dictum in Sadasivan (supra). The dictum laid down in Ryru Nair (supra) based on Rayarappan Nayanar (supra) can no longer be termed as good law in view of the subsequent developments in law and precedents. As pointed out in Sadasivan (supra), safety valve in the form of Order 43 Rule 1A incorporated by amendment by the Act 104 of 1976 takes care of the interest of parties who suffer orders, not falling within Section 104 and Order 43 Rule 1 of the Code. Section 104 and Order 43 Rule 1, clearly lays down that only a limited number of orders, allowable in a suit or proceeding, alone are made appealable. Rest of the orders are to be challenged in a regular appeal filed against the decree, as provided under Rule 1A of Order 43 of the Code. Section 104 and Order 43 Rule 1, clearly lays down that only a limited number of orders, allowable in a suit or proceeding, alone are made appealable. Rest of the orders are to be challenged in a regular appeal filed against the decree, as provided under Rule 1A of Order 43 of the Code. This view has been endorsed by the Patna High Court in Nagina Singh and others v. Sheojoti Kuer and others [(1991) SCC OnLine Pat 343] by reiterating that an appeal is a creation of statute and that under Order 43, Rule 1(s) of the Code, an appeal lies only against an order under Order 40, Rule 1 of the Code. The Allahabad High Court in Bhagwati Devi and others v. Smt.Angoori Devi and others [2011 SCC OnLine All 1161] has also considered the question though in a different context and held that Order 43 Rule 1 provides for an appeal from certain orders under the provisions of Section 104 C.P.C. Thus appeals under Order 43 Rule 1 are appeals under the provisions of Section 104 CPC. Section 104(2) creates a bar against filing an appeal against an order passed in appeal under that Section. In other words, if an order under Order 22 Rule 10 CPC is passed in an appeal under the provisions of Section 104, no further appeal against that order would lie in view of the bar created under Section 104 (2) C.P.C. The Karnataka High Court in Srinivas Rao v. Baburao and another [1968 SCC OnLine Kar 47] had occasion to consider the question whether the order for appointment of a receiver without appointing any person by name was appealable within the meaning of Rule 1 (s) of Order 43, CPC. and as such the decision in appeal would be one without jurisdiction. After a detailed scrutiny of the decisions of various High Courts on the point, which at times conflicted, the Court concluded that the appeal filed by the respondents in the lower Court was not maintainable and consequently the order or decision made thereon was without jurisdiction and it should fail. 12. It is clear that the orders from which an appeal lies are explicitly outlined in Section 104 and Order 43, Rule 1 of the Code. 12. It is clear that the orders from which an appeal lies are explicitly outlined in Section 104 and Order 43, Rule 1 of the Code. From Section 104 and Order 43, Rule 1, it is evident that only a limited set of orders made during a suit or proceeding are eligible for appeal. Thus in the scheme of Order 43 Rule 1, no appeal is envisaged from an order of dismissal of an application for appointment of a receiver preferred under Order 40 Rule 1. Any other orders can be contested through a regular appeal filed against the decree, as specified in Rule 1A of Order 43 of the Code. Section 16 of the General Clauses Act which provides that where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed [whether by itself or any other authority in exercise of that power, cannot be pressed into service to fill up an absence of appeal provision in Order 43, Rule 1. As rightly contended by Dr.Sankarjee, a right of appeal has to be expressly conferred by a statute, it cannot be presumed to exist by recourse to a rule of analogy or a rule of logic. 13. I thus answer the question of maintainability against the appellant and in favour of the respondents. In view of the above, any further discussion on the merits of the matter is rendered unnecessary. Conclusion In view of the above discussion, I hold that the appeal is not maintainable under Order 43 Rule 1 (s) of the CPC. The right of the appellant to challenge the order dated 12.04.2024 in I.A.No.12 of 2023 in O.S.No.40 of 2018 of the Subordinate Judges Court, Mavelikara by initiating appropriate proceedings, is however left open. The Registry shall return the records to the counsel for the appellant to facilitate the same. FAO is dismissed.