Madras High Court
Kutoor Vengayil Rayarappen Nayanar Of ... vs Kutoor Vengayil Valiyu Madhavi Amma And ... on 30 August, 1949
Equivalent citations: (1949)2MLJ601
JUDGMENT Horwill, J.
1. In this application for leave to appeal to the Federal Court against the order of this Court (1949) 2 M.L.J. 599 dismissing as not maintainable an appeal against the order of the Subordinate Judge of Tellicherry removing the petitioner from receivership and appointing two others, it has been argued that the petitioner has the right to appeal either under Section 109(a) or Section 109(c), Civil Procedure Code.
2. As for the first contention that the order passed by us was a final order, it is sufficient to state that a final order contemplated under Section 109 (a) must be one which affects finally the rights of parties. An order removing or appointing a receiver does not affect at all the rights of the parties; it is merely an order making provision for the due preservation of the estate during the pendency of the suit. This is such a well-recognised principle of law that authority for this proposition should hardly be necessary. We therefore content ourselves with referring to Rajnithi v. Nrisingha (1933) I.L.R. 12 Pat. 723 in which after a full discussion of the various decisions it was held that an order appointing or removing a receiver was not a final order.
3. If the order is not a final order then an appeal will lie to the Federal Court only if in the words of Section 109 (c), Civil Procedure Code, it can be " certified to be a fit one for appeal." This sub-section is no doubt very widely expressed; and it might not be easy in the absence of authority to say whether a case was a fit one for hearing by the Federal Court or not; but it is clear that leave to appeal to the Federal Court should not be granted unless the question raised is a matter of considerable importance. The propriety of granting a certificate under this sub-section was considered by their Lordships of the Privy Council in Benoy Krishna Mukherjee v. Satish Chandra Giri (1997) 54 M.L.J. 423 : L.R. 55 I.A. 131 : I.L.R. 55 Cal. 720 (P.C.), where they remarked, They think it right to add that, as a general rule and in the absence of special circumstances or some unusual occasion for its exercise, the power of making interlocutory orders is one which is not a suitable subject for review by the Judicial Committee.
It is no doubt true that the question decided by us is one of jurisdiction; but the matter is not here of any great importance, nor can the question whether one person or another should be appointed as receiver ordinarily be of any great practical importance. We do not therefore consider that this is a fit case for the granting of a certificate for appeal to the Federal Court. We are fortified in our conclusion by the remarks of the learned Judges in Mahomed Musaji v. Ahmed Musaji (1911) 13 C.L.J. 507, where they said, in considering a similar application, We are however not concerned with the propriety or otherwise of the order against which leave is sought; it is sufficient to say that no special question arises, such as would justify an order under Clause (c) of Section 109 of the Code or under Section 40 of the Letters Patent.
The petition is dismissed with costs.