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1 - 3 of 3 (0.18 seconds)Dhaneshwar Nath Tewari vs Ghanshyam Dhar Misra on 7 December, 1939
5. The present appeal was filed against this order. A preliminary objection was taken by the learned counsel for the respondent that no appeal lay against it. His contention was that the order having been passed on an application under Order 40, Rule 1, Civil P. C., for the appointment of a receiver and the order not being one appointing or refusing to appoint a receiver and no application having been made under Order 39, Rule 1 of the Code, so that the order under appeal could be treated under that Rule, and further that in all its essence it was an order under Section 151 of the Code, it was not open to appeal to this Court at all. So far as the first part of the contention is concerned, it is obviously correct, namely, that the order in question was actually passed on an application under Order 40, Rule 1 for the appointment of a receiver and also that it was not an order appointing or refusing to appoint a receiver. So far as the second part of the contention is concerned, it is also true that there was no application under Order 39, Rule 1 of the Code. The question is whether, nonetheless, the order could be treated as one under that Rule. If neither party had applied to the Court, specifically for the issue of an injunction such as provided for in Order 39, Rule 1, Civil P. C, and we know in this case it was really so, and still the Court deemed it just and necessary to make certain precautionary directions for the preservation of the property, the question is whether the order would still be regarded under Order 39, Rule 1, Civil P. C., and, therefore, appealable. It could be so regarded if the Court had no jurisdiction to pass such an order except under that provision; that is to say, if it had no inherent jurisdiction to pass an order dictated by the exigencies of the case in the interest of justice and for the protection of the rights of the people concerned. This precisely was the question before a Bench of this Court for consideration in the case of Dhaneshwar Nath v. Ghanshyam, 1940 ALL. L.J, 81. It was there held that, even outside the scope of Order 39, Rule 1, the Court had jurisdiction to pass orders for the protection of the property in dispute subject, of course, to the final disposal of the suit. I regard the order in the present case as one of that description.
Section 28 in The Court-fees Act, 1870 [Entire Act]
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