How to Challenge the Order of Appointment of a Receiver, Is the remedy, by way of an Appeal or in an Original Petition [Case Law]

Constitution of India - Article 227 - Code of Civil Procedure, 1908 - Order 40 Rule 1 & Order 43 Rule 1(s) - A party to the suit is appointed as receiver, with an obligation to deposit Rs.20,000/- per month towards income. The party so appointed seeks to challenge the order insofar as it relates to the obligation imposed. Is the remedy, by way of an appeal or in an Original Petition ?

In terms of Order 43 Rule 1(s) of the Code of Civil Procedure, an order of appointment of a receiver under Order 40 Rule 1 is appealable. he appointment of the plaintiff in the suit as the receiver is burdened with a condition, to deposit Rs.20,000/-, which is the probable monthly income from the vehicle in respect of which he is appointed as the receiver. The order of appointment takes with it the liability to pay the amount as stipulated. It goes as a single package. The obligation or the burden imposed alone cannot be severed. If the party so appointed is not willing to comply with the condition imposed or the obligation cast, the necessary corollary is that he is not willing to accept the order as such. Interfering with the conditions would necessitate tinkering with the very order of appointment. As noticed, the order is to be construed in its entirety. The part of the order relating to the obligation imposed is an integral part of the order of appointment of the receiver. Necessarily, the remedy would be to file an appeal as provided under Order 43 of the Code of Civil Procedure.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Sathish Ninan, J.

O.P(C) No.478 of 2018

Dated this the 4th day of April, 2018

AGAINST OS 662/2017 of MUNSIFF COURT, WADAKKANCHERRY

PETITIONER/PLAINTIFF

C.K. ANTONY

BY ADVS.SRI.T.M.RAMAN KARTHA SRI.I.SREEHARI SRI.T.SUKESH ROY SMT.K.BINUMOLE THOMAS 

RESPONDENT/DEFENDANT

SADEERJAN K.

BY ADV. SRI.P.J.JOE PAUL BY ADV. SRI.RAJAN G. GEORGE BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) BY ADV. SRI.MANU SEBASTIAN BY ADV. SRI.A.R.DILEEP 

JUDGMENT 

A party to the suit is appointed as receiver, with an obligation to deposit Rs.20,000/- per month towards income. The party so appointed seeks to challenge the order insofar as it relates to the obligation imposed. Is the remedy, by way of an appeal or in an Original Petition under Article 227 of the Constitution of India? 

2. In terms of Order 43 Rule 1(s) of the Code of Civil Procedure, an order of appointment of a receiver under Order 40 Rule 1 is appealable.

3. The operative part of the impugned order reads thus: 

“Hence, the plaintiff/respondent can be appointed as the receiver, who shall deposit an amount monthly as the probable income that can be generated from the vehicle. Vehicle is a luxurious diesel vehicle. He as a party receiver shall deposit Rs.20,000/- as the probable monthly income from the vehicle. Plaintiff shall deposit the 1st installment within 10 days from today and shall continue to deposit it on the 16th day of every month. If the plaintiff/respondent fails to deposit Rs.20,000/- then the defendant/ petitioner is entitled to take possession of the vehicle and shall deposit the monthly income before the Court.” 

4. To canvass the proposition that an O.P is maintainable, the learned counsel for the petitioner/plaintiff rely on the decision in Ram Babu Verma v Om Prakash Verma and others (AIR 1986 Allahabad 355). That was a case where the court appointing the receiver had only entered a finding in terms of Order 40 of the Code of Civil Procedure that it is “just and convenient” to appoint a receiver. Receiver was not appointed under the Order. In that context, the division bench of the Allahabad High Court held that, an order under Order 40 Rule 1 appointing a receiver is yet to be passed and therefore appeal is not maintainable. It would be appropriate to refer to the relevant portion of the judgment.

“In the instant case as seen above by the order appealed against only a finding was recorded that it was just and convenient to appoint a receiver and a receiver deserved to be appointed. No order appointing a particular person as receiver was passed by the order appealed against...........

The appeal thus is an appeal against the finding that it was just and convenient to appoint a receiver and creating the office of receiver and not against an order “appointing a certain person as a receiver.” 

It needs no further deliberation to find that the said decision was on an entirely different factual matrix and does not decide the question posed here.

5. The appointment of the plaintiff in the suit as the receiver is burdened with a condition, to deposit Rs.20,000/-, which is the probable monthly income from the vehicle in respect of which he is appointed as the receiver. The order of appointment takes with it the liability to pay the amount as stipulated. It goes as a single package. The obligation or the burden imposed alone cannot be severed. If the party so appointed is not willing to comply with the condition imposed or the obligation cast, the necessary corollary is that he is not willing to accept the order as such. Interfering with the conditions would necessitate tinkering with the very order of appointment. As noticed, the order is to be construed in its entirety. The part of the order relating to the obligation imposed is an integral part of the order of appointment of the receiver. Necessarily, the remedy would be to file an appeal as provided under Order 43 of the Code of Civil Procedure.

6. On the foregoing discussions, I have no hesitation to hold that the impugned order is appealable under Order 43 Rule 1(s) of Code of Civil Procedure, and I do so.

In the result, this original petition is dismissed as not maintainable. However, this will be without prejudice to the rights of the petitioner to challenge the impugned order in an appeal, if so advised.