John Bucknill, J.

1. This is a miscellaneous Appeal No. 2 of 1922 preferred by certain persons who were defendants in an action brought against them in connection with the proposed partition of certain properties. The properties purported to be situate partially in the Kingdom of Nepal and partially in the neighbourhood of Muzaffarpur and Bhagalpur. On 26-9-1921, the plaintiffs filed an application supported, it is said, by an affidavit asking for the appointment of a Receiver for the reaping of certain standing crops and for the raising of future crops. They also asked for the issue of an injunction upon the defendants restraining the defendants from reaping or appropriating paddy crops on certain lands. From the actual wording of this application it does not seem clear that any particular portions of the lands, except those which were under cultivation, were referred to. Now, on the 19th of November, a further application was made by the plaintiffs. In this application the petitioners applied for the appointment of a Receiver to take charge of the properties and to get the crops cut and gathered or to depute some officer of the Court to have the paddy crops reaped and gathered. Here again from the actual wording of the petition it is not abundantly clear as to whether the whole or a portion of the properties really were referred to.

2. To these petitions the defendants replied in a counter-petition, and, on the matter coming before the Subordinate Judge on the 15th of December, 1921, that officer dealt with it at considerable length. He says, that, under circumstances to which I shall presently refer, he thought that it was right that a Receiver should be appointed.

3. Now, before I go into the circumstances to which the Subordinate Judge refers it is necessary that I should deal very shortly with a preliminary point which was raised by the plaintiffs respondents here which certainly gives rise to a legal question of procedure which is of some interest.

4. The Subordinate Judge in what I may call the words of power in his order says:-

"It is therefore ordered that a Receiver of the properties in suit shall be appointed. A person nominated by both parties should be appointed, failing which a pleader of this Court or any other person will be appointed after hearing both parties."

5. Now, in Order XL is found that part of the Code of Civil Procedure which deals with the appointment of Receivers by the Court and it is common ground that there is, from an order made under the provisions of sub-Section (1) of Rule 1 of Order XL of the Code of Civil Procedure, an appeal.

6. So far as is material here the phrasing of the above quoted order runs as follows:-"Where it appears to the Court to be just and convenient, the Court may by order (a) appoint a Receiver of any property, whether before or after decree."

7. Now, it is argued for the respondents here that where an order is made simply declaring that a Receiver shall be appointed, such order is not legally of the same effect as an order appointing a person individually as the Receiver, and, that until some definite person is appointed by name and, going even further that until the conditions upon which he is appointed have been settled (such as, with regard to security and so forth), there is no order from which an appeal can be maintained or is capable of admission or has in fact actually been made within the meaning of Order XLI, Rule 1 (1).

8. This proposition, the foundation of which, I do not think that I clearly understand, is undoubtedly supported by some authority. In the case of Upendra Nath v. Bhupendra Nath (1910) 13 C. L. J. 157=9 I. C. 582 it was held by Mookerjee and Teunon, JJ., that it was only from a final and not from any interlocutory order appointing a Receiver that an appeal lay under Order XLIII, Rule 1 of the Civil Procedure Code. In that case the Subordinate Judge was invited by certain plaintiffs to appoint a Receiver having, upon the materials placed before him, come to the conclusion that a Receiver ought to be appointed, he made an order to this effect, "I think the whole of the property in suit will be better managed and the interest of all the parties will be better served if the property in suit be placed in the hands of a competent Receiver."

9. The appellants (that is to say, the defendants there) appealed but their Lordships came to the conclusion that the appeal would manifestly be incompetent and premature. Again in the case of Srinivas Prasad v. Kesho Prasad (1911) 14 C. L. J. 489=12 I. C. 745 decided by Mookerjee and Carnduff, JJ., it was held that no appeal lay till the final order for the appointment of a Receiver had been made and it was further laid down there that no effective appointment of a Receiver had been made within the provisions of Order XL, Rule 1, until the furnishing of security had been effected.

10. Again it was held by Heaton and Shah, JJ., in the case of Narabadashankar Mugatram Vyas v. Kewaldas Raghunathdas (1915) 17 Bom. L. R. 510=29 I. C. 504 that an appeal under Order XLIII, Rule 1, Clause (s) of the Code of Civil Procedure did not lie from an order providing that "a proper person should be appointed Receiver."

11. In the course of his judgment in that case Heaton, J., states that the Subordinate Judge had given his directions in the following manner: "I therefore hold that a proper person should be appointed a Receiver. The parties will be further heard on the point as to who should be appointed a Receiver." Against this order the defendant appealed and in the course of his judgment Heaton, J., remarked: "It seems to me that the Court has not appointed a Receiver. It has only decided that at some future date it will appoints Receiver. But the actual order to appoint a Receiver, it seems to me, will be made only when the Judge actually nominates a person or an official and specifically appoints him to be the Receiver in the case."

12. In the case of Mohammad Askari v. Nisar Husain (1919) 42 All. 227=54I. C. 520=18 A. L. J. 212, it was held by Tudball and Ryves, JJ., that no appeal lay from an order by which the Court expresses an intention to appoint a Receiver and calls upon the plaintiff to suggest names with particulars regarding security, remuneration, etc.

13. Tudball, J., in his judgment says: "In the suit in question an application was made by the plaintiffs for the appointment of a Receiver." The defendants objected and after hearing arguments, the Court passed an order to the following effect, "I would therefore, allow the application for appointment of a Receiver. Plaintiffs to suggest names for selection with particulars regarding security, remuneration and property to be taken possession of within a month."

14. This order was not regarded by their Lordships as constituting an appointment of a Receiver within the meaning of the order of the Code of Civil Procedure.

15. This is certainly a body of opinion which it is somewhat difficult to reconcile with the Full Bench case of Palaniappa Chetty v. Palaniappa Chetty (1917) 40 Mad. 18=5 L. W. 776=32 M. L. J. 304=40 I. C. 185=1917 M. W. N. 393 (F. B.). In that case it was held by Abdur Rahim and Srinivasa Ayyangar, JJ., (Spencer, J., dissenting) that an order of Court that a Receiver should be appointed in a case without appointing anybody by name as Receiver and adjourning the case to a later date for so appointing one is an order under Order XL, Rule 1, and can be appealed from under Order XLIII, Rule 1, of the Civil Procedure Code. There is thus a conflict of opinion.

16. I must confess that, so far as I myself am concerned, I am inclined to think that the logic of the matter rests better upon the Madras decision than upon the other decisions. To my mind the objection which has been suggested that there might be a series of appeals is not really very material. One cannot but contemplate the marked distinction which exists between the fact of a necessity for the appointment of a Receiver and the circumstances relating to the qualifications and the conditions upon which the Receiver is appointed. Why it is necessary that there should be present before an appeal can be preferred, a combination of those two factors which in themselves are disconnected, I do not know; and I do not see why there should not be an appeal from the decision that the appointment of a Receiver is necessary nor why there should not be another appeal against the status or personality of any individual who is actually appointed the Receiver in a case.

17. For these reasons I think it would be wise here to regard the decision of the Madras Full Bench (in which I may add, most of the other cases, which I have quoted above, were referred to and which is also of quite a recent date) as at present a better authority than that as laid down in the earlier cases to which I have referred.

18. I now turn to deal with the question of the necessity for the appointment of a Receiver, that is to say, with the main appeal. Now, the learned Judge has dealt with this question very clearly. He has pointed out that the plaintiffs have produced certain evidence to show that so far as part of the Bhagalpur lands are concerned he is registered, that is to say, recorded, in a certain khatians relative to certain jote lands in that area.

19. He recites that the plaintiff's claim is based upon an assertion that the plaintiff and the defendants are brothers and members of a joint Hindu family; he also indicates that, in disputing the plaintiff's claim the defendants appear to allege that in so far as the lands in Nepal are concerned, they, the defendants, do not lay any claim thereto and also that of the lands in the Muzaffarpur District no one is in possession.

20. He relates that there have been in the past, (and it is admitted that it is so) ill feeling and disputes between the partly and he thinks that there is, indeed a likely apprehension that in the future these conflicts may, unless there is some safeguarding of the property, be continued and probably lead to great difficulties in the proper management and lucrative cultivation of the lands in question.

21. He comes to the conclusion, therefore, (and in this I am bound to think that he has acted in his discretion quite rightly) that it was desirable that a Receiver should be appointed. Now, I do not see how, under circumstances such as these, it is possible for the appellants successfully to contend that the principles upon which Receivers should properly be appointed have been violated by the Subordinate Judge in any way, or that it would be possible for this Court under such circumstances as are disclosed in this case, to interfere with the well thought out decision of the Subordinate Judge.

22. It is suggested that there is some doubt whether or not in the Subordinate Judge's decision he has really ordered an appointment of a Receiver over the whole of the properties. I think myself that he has guarded himself carefully in dealing with this matter. He says that "It is true that I cannot appoint a Receiver with respect to any property situate in Nepal but the defendant disclaims all title to it and the Receiver when appointed may receive directions accordingly."

23. I suppose that what he means here is that he does not think that he can appoint a Receiver for properties situate outside British India; at any rate not in Nepal; but it may be that the matter of the nomination of the individual to be the Receiver and of the conditions upon which he is nominated may occasion before the Subordinate Judge some necessity for some arrangement which will result in the desirability of directions being given to the Receiver as to what in fact he can or should do or can be arranged to be done in connection with the property in Nepal.

24. Secondly with regard to the Muzaffarpur property, the Subordinate Judge has safeguarded, his order by pointing out that the defendants state that nobody is in possession of the Muzaffarpur properties and therefore that no Receiver can be appointed there because neither of the parties is in possession of the property or rather that part of the property in suit; and the Subordinate Judge adds that, if the property situate in the Muzaffarpur District are discovered by the Receiver to be in the possession of neither party, the Receiver should submit a report to the Subordinate Judge and thereafter will receive the necessary directions thereon. With regard to the Bhagalpur properties, that of course presents no difficulty provided that he has, as I think is the case, applied the principle rightly.

25. Under those circumstances I think that this appeal should be dismissed with costs.

26. Jwala Prasad, J.

27. I agree.