{"id":59230,"date":"1952-07-24T00:00:00","date_gmt":"1952-07-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajit-singh-and-anr-vs-yamuna-devi-and-anr-on-24-july-1952"},"modified":"2015-10-28T05:43:30","modified_gmt":"2015-10-28T00:13:30","slug":"ajit-singh-and-anr-vs-yamuna-devi-and-anr-on-24-july-1952","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajit-singh-and-anr-vs-yamuna-devi-and-anr-on-24-july-1952","title":{"rendered":"Ajit Singh And Anr. vs Yamuna Devi And Anr. on 24 July, 1952"},"content":{"rendered":"
Rajasthan High Court<\/div>\n
Ajit Singh And Anr. vs Yamuna Devi And Anr. on 24 July, 1952<\/div>\n
Equivalent citations: AIR 1953 Raj 121<\/div>\n
Author: Wanchoo<\/div>\n
Bench: Wanchoo, Dave<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Wanchoo, C.J.<\/p>\n
1. This is an appeal by Ajit Singh and Abhaya Singh against the order of the Additional District Judge of Jaipur. This order has been passed in a pending suit for partition brought by Yamuna Devi, plaintiff-respondent, against the appellants and their brother Amar Singh. The plaintiff-respondent claims that she is entitled to half the property, while the other half belongs to the three brothers, and wants her share to be partitioned by metes and bounds. During the pendency of the suit a receiver was appointed by the Court with the consent of all the parties in April, 1951, The receiver realised Rs. 10,000\/- from the Public Works Department. Thereafter the parties applied to the Court that the receiver may be directed to pay them certain amounts by way of subsistence allowance. The Additional District Judge, by his order under appeal, directed the receiver to keep Rs. 5,000\/- in reserve, and to pay Rs. 2,500\/- to the plaintiff-respondent and Rs. 2,500\/- to the defendants-appellants and their brother Amar Singh. The present appeal has been filed against that part of the order by which the plaintiff-respondent has been given an equal amount with the defendants-appellants and their brother, and it has also been suggested that the defendants-appellants and their brother should have been given a larger amount.\n<\/p>\n
2. A preliminary objection has been raised that no appeal lies against the order in question. Learned counsel for the appellants, however, urges that the order is appealable under Order 43, Rule 1 (s) read with Order 40, Rule 1 (d), Civil P. C. Order 43, Rule 1 (1) provides for appeal from an order under Rule 1 or Rule 4 of Order 40. We are not concerned here with Order 40, Rule 4. Order 40,   Rule   1   (d)   on   which   reliance   has   been
\nplaced reads as follows: :\n<\/p>\n
“Where it appears to the Court to be just and convenient the Court may by order–\n<\/p>\n
 *  *  *  *<\/p>\n
(d) confer   upon   the   receiver   all   such powers  as  to  bringing   and   defending suits and for the realisation, 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.”\n<\/p>\n
Learned  counsel contends   that   the order in question is covered by the words “confer upon receiver all such powers ……… for ……… the application and disposal of such rents and profits”. He has relied on a number of authorities in this connection.\n<\/p>\n
3. Before we examine the authorities,   we may   analyse   the   words   of   this   rule itself. Obviously Rule  1, Clause  (d), comes into operation after   a   receiver   has   been   appointed   under Clause   (a).     Clause   (a)   deals    merely   with   the appointment   of   the   receiver,   while   Clause   (d) deals with conferment of powers on him.   It is of course not necessary that the Court should confer all the powers which are specified in Clause   (d)    on   the   date   on   which   the   order appointing  the  receiver  is  made.     It is  open to a Court, for example, to confer some powers at the  time  of appointment  and  confer other powers later on.    But the main point which it is necessary to stress is that under Clause (d) the Court   confers   powers   on   the  receiver   to   do certain  acts.    Conferment  of such powers,  in our  opinion, implies  that  the  receiver is  left with the discretion to decide himself whether he would exercise those powers in a particular set  of  circumstances.     But   where   the   Court merely passes an order or gives a direction on which  the  receiver is  bound  to  comply with, it cannot be said that any power is being conferred on  the  receiver within the meaning of Clause   (d)   of  this  Rule.    In   most of the cases, cited on behalf of the appellants, it has been assumed  that  an  order  directing the  receiver to   pay  a   certain   sum   of   money   out  of   the money in his possession to a certain person is a  conferment of power on  him to dispose of the   money   in   his   hand.    But   with   all   due respect to the learned Judges who have come to that conclusion, we must say that there is no power left in the receiver when he receives such  an  order.    All  that he  has to  do  is  to comply   with   the   order   or   direction   of   the Court.    We   may   also   respectfully   point   out that there is apparently no reasoning in those cases in support of the assumption which we have  mentioned  above.\n<\/p>\n
4. The first case is — ‘Kamalathammal v. C. V. Shrinivasachariar’, 14 Ind Cas 277 (Mad). In that case a Division Bench of the Madras High Court held that an order directing a receiver appointed in a suit to make certain payments to a party pending the disposal of the suit, was appealable by the combined operation of Order 40, Rule 1 (d) and Order 43, Rule 1 Clause (s), Civil P. C. It seems that the learned Judges felt that there could be no conferment of power without some discretion being left in the receiver; but they said that it did not make any difference at all. We may quote the following in this connection:\n<\/p>\n
 “The effect of the order under appeal is to authorize the receiver to make certain payments to defendant 1 in the suit.   No doubt, it has also the further effect that the receiver is bound   to carry out   the  order;   but we think that this  cannot make any difference as far as the present question is concerned.”\n<\/p>\n
5. The  next  case  is  —  ‘Eastern  Mortgage and Agency Co. Ltd. v. Fakuruddin Mohomed’, 17  Ind Cas  849   (Cal).    In that case the  receiver was ordered by the Court to pay certain sums of money to the parties to the suit, and the question arose whether such an order was appealable.    It  was  held   that  it  was  appealable under Order  43, Rule  1   (s), read with Order 40, Rule 1   (d).    The argument in that case, which appears to have been pressed, was that whatever power had to be conferred on the receiver should have been conferred on the date of his appointment, and that no further power could be  conferred  later  on,  and  this  argument  is repelled by the learned Judges in these words:\n<\/p>\n
  “The learned counsel has suggested that this order must be one passed at the time of the appointment of the receiver so as to give a right  to   appeal  under   Order   43,  Rule   1.     This contention   is,   in   our   opinion,   manifestly unsound;  for,  no Court  could  possibly  pass orders at the time of the appointment of the Receiver so as to cover the application and disposal of the rents and profits which might be   collected   subsequently.”\n<\/p>\n
We must, however, point out, with due respect, that the learned Judges do not seem to have attached full importance to the words “confer all  such   powers”,    and   seem   to   have   taken every direction  to  a  receiver with  respect  to money in his hand as amounting to conferment of powers on him.    We feel that this cannot be so.    Certain directions that can be given to a receiver with respect to money in his hand may amount to conferment of power, if some discretion  is  left   in   the  receiver   as   to   the application and disposal of the money; but if there is no discretion left in the receiver, and he has merely to carry out the order of the Court, it cannot be said that any power was being   conferred   on   the   receiver   within   the meaning of Clause   (d).\n<\/p>\n
6. The next case is — ‘Lachminarayan Modi v. H. Naik & Co.’, AIR 1947 Pat 5. This case gives no reasoning of its own, and merely follows the Calcutta ease mentioned above 17 Ind Cas 849 (Cal).<\/p>\n
\n \n\n7. The last case is -- 'Vellayan Chettiar v. Receivers,   Shri   O.   A.   Narayanaswami   Iyer', AIR 1948 Mad 452.    It is obvious from what the learned Judges have said in this case that they were themselves not  sure whether  such an order to the receiver could amount to conferment  of  powers   on   him.    Certain  moneys were  lying  with  the  receiver,  and  the  Court gave certain directions as to how they should be disposed of.    The learned Judges said that \n \"the Court must have  jurisdiction  to  decide on the destination  of the  properties in  the hands  of its  receiver.    This  may be under Order 40, Rule 1  (d), but if that provision is not applicable, the Court can give the necessary directions   in   the   exercise   of   its   inherent power.\" \n \n\nThe last words show that the learned Judges themselves doubted if such an order can amount to conferment of powers under Clause (d).\n \n\n<\/pre>\n
8. As against these cases, we may refer to one case on the other side, namely, — ‘Fateh Chand v. Amar Nath’, AIR 1933 Lah 216. In that case the receiver asked for directions with respect to certain properties and he was directed by the Court to restore certain properties to a certain person. There was then an appeal in the Lahore High Court, and the question arose whether an appeal lay from this order. The argument on behalf of the appellant was that the appeal lay under Order 43, Rule 1(s), read with Order 40, Rule 1(d). The learned Judge, however, pointed out that Order 40, Rule 1(d) dealt with the powers to be conferred on a receiver, and that in the case before him the Court did not purport to confer any power on the receiver. An order like the one before him, in which the Court merely directed the receiver to take particular action, did not amount to conferment of power on the receiver, and was, therefore, held not appealable.\n<\/p>\n
9. We are of opinion that the view taken by the Lahore case is the sounder one, and is supported by the language of the rule. In this view of the matter, the preliminary objection prevails, and the appeal must be dismissed.\n<\/p>\n
10. Learned counsel for the appellants points out to us that his case is that the plaintiff-respondent is only entitled to maintenance. He also points out that she is not possessed of any immovable property other than the property in suit, and that if she loses the suit, and in the meantime takes away as much as given to the appellants, they may be put to unnecessary loss. We feel that in future the learned Judge, while dealing with such applications for money by these parties, would keep this aspect in mind in coming to his decision in the matter.\n<\/p>\n
11. We dismiss the appeal with costs to the
\nplaintiff-respondent.<\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court Ajit Singh And Anr. vs Yamuna Devi And Anr. on 24 July, 1952 Equivalent citations: AIR 1953 Raj 121 Author: Wanchoo Bench: Wanchoo, Dave JUDGMENT Wanchoo, C.J. 1. This is an appeal by Ajit Singh and Abhaya Singh against the order of the Additional District Judge of Jaipur. This order has been […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,29],"tags":[],"class_list":["post-59230","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court"],"yoast_head":"\nAjit Singh And Anr. vs Yamuna Devi And Anr. on 24 July, 1952 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajit-singh-and-anr-vs-yamuna-devi-and-anr-on-24-july-1952\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajit Singh And Anr. vs Yamuna Devi And Anr. on 24 July, 1952 - 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