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Appeal against appointment of receiver in section 6 of specific relief act, 1963

(Querist) 19 October 2013 This query is : Resolved 
suit under Section 6 of Specific Relief Act, 1963 (for brevity said section) is of summary in nature. Section 6 (3) specifies that no appeal lies against any decree or order passed under said section 6. District Court allows application for Appointment of Receiver under O-40 of CPC. then under what section or law an Appeal in respect of interlocutory order of appointment of Receiver in suit under said section 6 lies. which are the reported supreme court or High court judgments.
adv Arvind
09869617090
prabhakar singh (Expert) 20 October 2013
Under order XLIII.rule 1(s)of C.P.C.
Devajyoti Barman (Expert) 20 October 2013
Yes, Miscellaneous Appeal lies.
R.K Nanda (Expert) 20 October 2013
search indiankanoon.com
Raj Kumar Makkad (Expert) 20 October 2013
You need to search it online.
Arvind Manghirmalani (Querist) 20 October 2013
Dear Mr. Prabhakar singh,
Thank You for reply. But Under order XLIII.rule 1(s)of C.P.C.(which deals for Appeal against an order under Rule 1 or Rule 4 of Order XL;)this is in general context of appointment of Receiver. but section 6 of specific Relief Act is of summary in nature and statute itself bars appeal against decree or order passed under section 6 vide section 6 (3). therefore, according to me there shall not be any appeal allowed from an interlocutory order (which is under Rule 1 of Order XL) passed by Senior division, District Court. it is settled law that when statute provides certain acts to be done in particular manner, the same shall be done in that particular manner. I feel Under order XLIII.rule 1(s)of C.P.C. is not applicable due to interlocutory nature of order in section 6 and bar under section 6 (3) of Specific Relief Act. Division bench at Bombay High court in year 1991 passed judgement (not reported)in an appeal whereby it held that no appeal lies against order of city civil court appointing receiver in suit under section 6 of Specific relief Act. I could not yet traced that judgment but I was told that it was quoted at one time by Mr. Tulzapurkat (Sr. Adv of Bombay). there are reported judgement on appeals against order of single judge of High Court under letters patent clause 15. However, I could not trace out judgements on appeal against order of District Court appointing Receiver at interlocutory stage in a suit under section 6 of specific relief act. I need guidance and if any reported judgement on the subject, please give guidance. thank You.
Adv Arvind
Arvind Manghirmalani (Querist) 20 October 2013
Dear Mr. R. K. Nanda & Mr. Raj Kumar,
I have tried to search indiakanoon but could not trace out any judgement on the subject. please read my reply to Mr. Prabhakar Singh and if you can suggest/ guide in the matter.
thank you,
Adv Arvind
Arvind Manghirmalani (Querist) 21 October 2013
not resolved
Ms.Nirmala P.Rao (Expert) 21 October 2013
Your remedy lies in filing an application of inquiry/enquiry by the court and the court may suo motu or on your application under the relevant provisions of CPC (Order 40(Rules (1) and(4)) would inquire in to the receiver's willful default or gross negligence in discharge of his duties as a receiver- at any stage of the suit or proceedings including an interlocutory order relating to appointment of receiver under Order 40 rule (1) and(4) or through Civil Miscellaneous Appeal against interlocutory orders connected with receivers appointment under Order 43 of C.P.C nor a First appeal.
Arvind Manghirmalani (Querist) 23 October 2013
Dear Ms. Nirmala P Rao,
my querry is not with regard to inquiry in to the receiver's wilfull default or gross negligence in discharge of his duties as a receiver. you are requested to read my querry and subsequent post to Dear Mr. Prabhakar singh.
Nadeem Qureshi (Expert) 23 October 2013
Dear Arvind
you should search through other sources as manupatra, lawpack, scconline or other legal paid sites for judgement
ajay sethi (Expert) 23 October 2013
17. In Vinita M. Khanolkar vs. Pragna M. Pai and Others 1, the Supreme Court has held that when a Single Judge of the Bombay High Court passes an order in a proceeding under section 6 of the Specific Relief Act, notwithstanding the bar under section 6(3) of that Act, the appeal to a Division Bench from such order, is maintainable under clause 15 of the Letters Patent of the Bombay High Court which is a special law for this Court and which must prevail in case of conflict between a special law and a general law. The said decision has been approved by a Constitution Bench of the Supreme Court in P.S. Sathappan (Dead) by Lrs. vs. Andhra Bank Ltd. & Ors.2, (Para 32).
ajay sethi (Expert) 23 October 2013
bombayhighcourt.nic.in/data/judgements/2012/OSAPP41212.pdf‎Cached


Bombay High Court
Khushnuma Ibrahim Khan vs All Indian Inhabitants, Claiming ... on 9 October, 2012
Bench: N.M. Jamdar
Appeal (L) 412-12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

APPEAL (LODGING) NO.412 OF 2012

IN

NOTICE OF MOTION NO.51 OF 2012

IN

SUIT NO.27 OF 2012


1. Khushnuma Ibrahim Khan

Aged 40 years, having address at

A/505, Noor-e-Jehan Complex CHS Ltd.

Pipe Road, Kurla (West)

Mumbai 400 070.

2. Raghib Ibrahim Khan ... Appellants Aged 16 years, through his natural (Org.Plaintiffs) Guardian Mrs. Khushnuma Ibrahim Khan,

having address at A/505, Noor-e-Jahan

Complex CHS Ltd., Pipe Road,

Kurla (West), Mumbai 400 070.

Versus

1. Shri Asadullah Khan alias Sameer Khan

Aged 42 years, s/o. Late Noorullah Khan

having address at Room No.4,

1st floor, Essjay House, above Barkat

English School, Agripada,

67, Maulana Azad Road,

Mumbai 400 011.

2. Shri Najmuzzaman Khan,

Aged 68 years,

s/o. Late Noorrullah Khan having address

3. Smt. Tara Begum,

Aged 60 years, w/o. Najmuzzaman Khan,

Aged 68 years, both having address,

at 201, C Wing, Varsha Adarsh CHS Ltd.

Nehru Nagar, Kurla (East), Mumbai 400 024.

SRK 1 of 36 Appeal (L) 412-12

4. Shri Sheheryaar Khan,

aged 32 years, Having address at

Faisal Management, Room No.4,

1st floor, Essjay House,

above Barkat English School,

Agripada, 67, Maulana Azad Road,

Mumbai 400 011.

5. Mohd. Mehtab Khan

6. Mohd. Ilyas Khan

7. Mohd Dayan Khan

8. Smt. Shehzadi

9. Miss Rani

All Indian Inhabitants, claiming to be

occupying the suit flat having address:

A/505, Noor-e-Jahan Complex,

Pipe Road, Kurla (West), Mumbai-400070.

10. Tabish Ebrahim Khan,

Aged 22 years, Indian Inhabitant

residing at 3/10, L.I.G. Colony,

Vinoba Bhave Nagar, Pipe Road,

Kurla (West), Mumhai 400 070.

11. Kamran Khan

12. Zakarullah Khan, ... Respondents claiming to be occupying the suit (Orig.Defendants) flat, having address:

A/505, Noor-e-Jehan Complex,

Pipe Road, Kurla (West),

Mumbai 400 070.

And in the alternate served through

Defendant No.1, having address at

Room No.4, 1st floor, Essjay House,

Above Barkat English School,

Agripada, 67, Maulana Azad Road,

Mumbai 400 011.

SRK 2 of 36 Appeal (L) 412-12

Mr.P.K. Samdani, Senior Advocate with Mr. Mayur Khandeparkar, and Mr.Nivit Srivastav & Associates for the appellants. Mr.G.C.Singh for respondent Nos.1 to 4.

Mr.G.S.Hegde with Mr.U.V.Singh for respondent Nos.5,8,9 and 11. Mr. Sukanta Kamarkar with Mr.R.U. Singh for respondent No.10. Mr.P.Y.Ladekar, Court Receiver present.

CORAM : MOHIT S. SHAH, C.J. &

N.M. JAMDAR, J.

JUDGMENT RESERVED ON : 28 September 2012 JUDGMENT PRONOUNCED ON : 09 October 2012
Arvind Manghirmalani (Querist) 23 October 2013
Dear Mr Sethi,
I am aware of the judgement informed by by which was Appealed to Supreme court and order was passed in Jan 13 and is reported in AIR April issue. Supreme court has dealt with the subject and apart from the judgements Vinita M. Khanolkar vs. Pragna M. Pai and Others other judgements are also referred. But the subject matter of this judgment deals with order appointing Receiver in section 6 of specific Relief Act passed by single judge of High court and Appeal lies under clause 15 of Letters pattent Act. here L.P. is special enactment which provides Apeeal against order of single judge to D.B. of that High Court. But my querry is with regard to order by District Court against whose order, Letters patent Act is not applicable. I specifically made it clear in my querry that order is passed by District Court and L.P . is not applicable. you are requested to do needful
Ms.Nirmala P.Rao (Expert) 23 October 2013
Dear Client,

The Letter Patent Appeal in ordinary Civil Cases(at least since 2002) against a single Judge bench has long since been altogether abolished. Only, LPAs in Writ cases involving important Questions of Law are still being retained under LPA Act.. Therefore your only remedy lies in filling a CMA under Order 43 CPC whether appeal is allowed or not allowed under order 43 read with section 6 of specific Relief Act..If you wish to thank me for this reply please click the thank you button on my profile.
Ms.Nirmala P.Rao (Expert) 23 October 2013
Please log on to the Supreme Court website as well to search on the relevant case law.
ashutosh mishra (Expert) 23 October 2013
Whoever seeks advices is not always a client
sis.

The author is certainly a lawyer and his concern seems right if we examine the provisions of s.6(3)S.R.Act.

The terms of the section 6(3)S.R.Act are crystal clear and being an Act specially passed that too after CPC,as of necessity we need to understand NO APPEAL WOULD LIE.

I AGREE WITH YOU AUTHOR.
ashutosh mishra (Expert) 23 October 2013
Whoever seeks advices is not always a client
sis.

The author is certainly a lawyer and his concern seems right if we examine the provisions of s.6(3)S.R.Act.

The terms of the section 6(3)S.R.Act are crystal clear and being an Act specially passed that too after CPC,as of necessity we need to understand NO APPEAL WOULD LIE.

I AGREE WITH YOU AUTHOR.
Arvind Manghirmalani (Querist) 23 October 2013
Dear Mr. Ashutosh Mishra,
I need any judgments on the subject of my querry as ld. court is of view that appeal lies under O-43 (1) (s) of CPC as informed by Mr. Prabhakar singh in this section. please consider my reply to Mr. Prabhakar singh. ld court has asked me to refer any judgement on this issue which I am unable to trace till now. you are requested to do needful
ashutosh mishra (Expert) 23 October 2013
dear friend!

I would try my best.
Arvind Manghirmalani (Querist) 23 October 2013
Dear Mr. Ashutosh Mishra,
Thank you
ABDUL RAZIQUE (Expert) 23 October 2013
Karnataka High Court
Iim Employees Association vs Indian Institute Of Management on 14 August, 1990
Equivalent citations: ILR 1990 KAR 3148, 1990 (2) KarLJ 226
Author: Ramachandriah
Bench: Ramachandriah
ORDER 39 RULES
1 & 2 - Temporary injunction against plaintiffs.

This appeal is filed under Order 43 Rule 1
ashutosh mishra (Expert) 24 October 2013
Dear Mr.Arvind Manghirmalani!

I could lay my hands on a pdf containing
a judgement from Delhi High Court where
in suit filed u/s 6 of S.R/Act was rejected
u/o.7r11 CPC and it was held NO APPEAL LIES
in view of S.6(3)of S.R.Act.

Hope It would work well for you as ratio even when it wasn't about appointing receiver.
ashutosh mishra (Expert) 24 October 2013
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SPECIFIC RELIEF ACT, 1963
CM (M) No.2834–39 of 2005
Date of decision : 09.11.2006
SMT. HOSHIARI DEVI & ORS. ...APPELLANTS
Through : Mr. M.L. Sharma with
Mr. Rajeev Pasricha,
Advocates.
Versus
SHRI JAGAT SINGH & ANR. ...RESPONDENTS
Through : Mr. V.K. Khurana with
Mr. Munish Chhoker,
Advocates.
SANJAY KISHAN KAUL, J. (Oral)
1. The respondents filed a suit under Section 6 of the Specific Relief Act, 1963
(hereinafter referred to as the said Act) against the petitioners. The trial court in terms of the order dated 13.4.2004 dismissed the suit. It may be noticed that the suit was not finally adjudicated on merits but the trial court found that the title of the respondents was defective and thus the suit ought to be dismissed. In fact, the trial court has actually
rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908
(hereinafter referred to as the said Code) though the phraseology used shows that the suit
has been dismissed. The plaint has actually been rejected on the ground that the suit is
barred by law as set out in Clause (a) of Rule 11 of Order 7 of the said Code. In the
present proceedings the validity of the said order is not required to be examined and thus it would not be appropriate to comment on the merit of the adjudication by the trial court.

2. The respondents aggrieved by the same filed an appeal before the learned
Additional District Judge. The petitioners raised an objection about the maintainability of the appeal in view of the suit being filed under the provisions of Section 6 of the said Act. The appellate court in terms of the impugned order dated 24.10.2005 has held the appeal as maintainable. The said order is sought to be challenged in the present proceedings under Article 227 of the Constitution of India.

3. It has to be appreciated that the suit filed under Section 6 of the said Act is to be governed by the provisions of that Section as it is a suit of a special nature. Sub-Section (3) of Section 6 of the said Act provides that no appeal lies from any order or decree passed in any suit instituted under this Section, nor shall any review of any such order or decree be allowed.

4. Learned counsel for the petitioner contends that the appeal could not have been maintained by the first appellate court in view of the pronouncement of the Apex Court in Sanjay Kumar Pandey & Ors. Vs. Gulbahar Sheikh & Ors. (2004) 4 SCC 664. The Supreme Court has held that in view of provisions of sub-Section (3) of Section 6 of the said Act, the remedy of an aggrieved party lies in filing a revision under Section 115 of the said Code or a regular suit based on title.

5. Learned counsel for the respondent, on the other hand, seeks to contend that there
is no adjudication on merits as the plaint has been rejected. Learned counsel thus submits by reference to the provisions of Order 4 of the said Code that a suit has to be instituted by presenting a plaint and only when a plaint complies with Order 6 and Order 7 of the said Code would the said suit really be deemed to be instituted. Order 4 Rule 1 of the said Code reads as under:

“ORDER IV
INSTITUTION OF SUITS
1.Suit to be commenced by plaint. - (1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf.
(2)Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3)the plaint shall not be deemed to be duly instituted unless it complies with the
requirements specified in sub-rules (1) and (2).”
6. Learned counsel thus submits that when the trial court exercises jurisdiction under Order 7 Rule 11 of the said Code, it amounts to rejection of a plaint presented at the threshold.

7. Learned counsel also submits by reference to Section 2(2) of the said Code that as per the deeming provisions contained therein an order passed for rejection of a plaint is deemed to be a decree and thus would be appealable. Section 2(2) of the said Code reads
as under:
“2. Definitions. - In this Act, unless there is anything repugnant in the subject or context,
-
(1).....
(2)”decree” means the formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.”

8. On consideration of the submission of the learned counsel for the parties I am of
the view that there is no doubt that when a plaint is rejected by a Court exercising powers under Order 7 Rule 11 of the said Code, the same falls within the definition of the decree
under Section 2(2) of the said Code and only an appeal would be maintainable. In this
behalf reference may be made to the judgement of the learned single Judge of this Court in Kartar Singh Vs. Smt. Shanti & Ors. 110 (2004) DLT 156 which follows the view taken in Shamsher Singh Vs. Rajinder Prashad & Ors. AIR 1973 SC 2384. This would
however be the position in case of an ordinary suit.

9. The distinguishing factor in the present case is that the suit has been filed under
the provisions of Section 6 of the said Act. Learned counsel for the respondent, thus, seeks to point out that the suit was filed under Section 6 of the said Act but
simultaneously a decree for injunction was also prayed. However, it cannot be lost sight of that Section 6 of the said Act is a special procedure created to try a particular nature of suits where a party is dispossessed from the suit property without due process of law and cannot be clubbed with any other relief. Section 6 of the said Act reads as under:
“6. Suit by person dispossessed from immovable property. (1) If any person is
dispossessed, without his consent, of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2)No suit under this section shall be brought-
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.

(3)No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4)Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”

10. Sub-Section 3 of Section 6 of the said Act clearly bars an appeal from any decree
or order passed under the said provision. In view of the judgement of the Apex Court in Sanjay Kumar Pandey & Ors. case (supra) it is no more res integra that the remedy from such an order or decree would be a title suit or revision under Section 115 of the said Code. Since the rejection of the plaint results in a deemed decree and the suit is under Section 6 of the said Act, the remedy of the respondents was only by filing a revision under Section 115 of the said Code.
11. In view of the aforesaid position, the impugned order cannot be sustained and is
set aside. It is held that the appeal filed by the respondents was not maintainable and the remedy of the respondents was only by filing a title suit or revision under Section 115 of the said Code. It will thus be now for the respondents to take recourse to the appropriate legal remedy in accordance with law aggrieved by the impugned order of the trial court
dated 13.4.2004.
12. The petition is allowed leaving the parties to bear their own costs.

SD./-
SANJAY KISHAN KAUL, J.
ashutosh mishra (Expert) 24 October 2013
Pdf address is :

http://www.delhicourts.nic.in/Nov06/Hoshiari%20Devi%20Vs.%20Jagat%20Singh.pdf


ANOTHER PDF FROM BOMBAY HIGH COURT IS GIVEN BELOW:

http://bombayhighcourt.nic.in/data/judgements/2011/CFA73510.pdf
Devajyoti Barman (Expert) 24 October 2013
But the author is asking for decision which makes it possible to show that appeal is preferred.
Arvind Manghirmalani (Querist) 24 October 2013
Dear Mr. Ashutosh Mishra,
thank you for 2 judgements, one of Bombay HC which is in respect of Appeal filed after passing of decree and another is of Delhi HC which is in respect of Appeal after the suit is dismissed. There are many judgements which are after the suit is decreed or dismissed. My querry is with regard to maintainability of Appeal against appointment of Receiver in a pending suit filed under section 6 of S.R. Act. requested to re-understand my querry.
thanks & Regards
Arvind Manghirmalani (Querist) 26 October 2013
Dear Experts and all participants,
Thanks for your efforts. My query is 6 days old and is still unresolved and open. However, I could lay my hands during these days on only one judgement (reported) AIR 1998 Gujarat 120 delivered by Hon'ble Justice N.N. Mathur in Ramesh Devchand Pala V. Jayantkumar Gordhandas Madani & Ors.
I again request to all experts and participants in the field to understand my question regarding "maintainability of an appeal against District Court interlocutory order of appointment of receiver in a suit filed under section 6 of specific Relief Act, 1963 considering bar under section 6 (3) of S.R. Act.
Thank you,
Arvind Manghirmalani (Querist) 23 November 2013
Dear Experts and all participants,
Thanks for your efforts. requested to re-understand my querry and enlighten accordingly.
Devajyoti Barman (Expert) 25 November 2013
welcome......


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