# Babu Verma v. Om Prakash Verma

- **Citation:** (2009) 1 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-04
- **Case number:** Civil Misc. Writ Petition No. 54505 of 2008
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-verma-v-om-prakash-verma-41301
- **Pages:** 3

## Headnote

Code of Civil Procedure-section 115 read
with order 40-Appointment of receiverTrail Court directed both parties to
suggest the name of two person-revision
against that order-held-not maintainable
after appointment of receiver-can be
challenged in Appeal.
Case law discussed:
AIR 1986 Allahabad 355

## Text

1 All] Anil Sharma V. Rajan Pathak and others
149
19. After the judgement was
delivered in the open Court today, an oral
request was made on behalf of the writpetitioner for a certificate being granted in
terms of Article 134-A of the Constitution
of India that the case involves substantial
question of law of general importance and
needs to be decided by the Hon'ble
Supreme Court.

In
our
opinion,
no
substantial
question of law of public interest arises in
the present case and, therefore, the
certificate prayed for is refused.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 54505 of 2008

Anil Sharma

...Petitioner
Versus
Rajan Pathak and others ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri D.K. Tripathi

Counsel for the Respondents:
Sri Ashok Kumar Gupta
Sri Rahul Sahai
S.C.

Code of Civil Procedure-section 115 read
with order 40-Appointment of receiverTrail Court directed both parties to
suggest the name of two person-revision
against that order-held-not maintainable
after appointment of receiver-can be
challenged in Appeal.
Case law discussed:
AIR 1986 Allahabad 355

(Delivered by Hon'ble Tarun Agarwala, J.)

1. An application was filed by the
respondent No.1 for appointment of a
receiver under Order 40 of the C.P.C.
This application was allowed by an order
dated 26.04.2008. The Civil Judge, while
allowing the application, directed the
parties to submit two names for the
purpose of appointing a receiver. The
petitioner, being aggrieved by the said
order, filed a revision under Section 115
of the C.P.C. The said revision was
dismissed as not maintainable. The
petitioner, being aggrieved, has filed the
present writ petition.

2. Heard Sri Shashi Nandan, the
learned Senior Counsel assisted by Sri
D.K. Tripathi, the learned counsel for the
petitioner and Sri Rahul Sahai, the learned
counsel appearing for respondent No.1.

3. The learned senior counsel
submitted that at the present moment, a
receiver has not been appointed and only
an application of the opposite party was
allowed. Consequently, till such time, as a
receiver was not appointed, no appeal
under Section 43 Rule l(s) of the C.P.C.
could be filed. In support of his
submission, the learned counsel for the
petitioner placed reliance upon a division
bench decision of this Court in Ram
Babu Verma vs. Om Prakash Verma
and others, AIR 1986 Allahabad 355,
wherein it was held that till such time as
an order, appointing a particular person,
as a receiver was not made by a court, no
appeal under Order 43 Rule 1 (s) was '
maintainable. The Court held that against
an order recording a finding that it was
just and convenient to appoint a receiver
and creating an office of a receiver was
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
not sufficient for filing an appeal under
Order 43 Rule l(s) of the C.P.C

4. In the light of the aforesaid
judgment, the learned counsel for the
petitioner submitted that a revision under
Section
115
of
the
C.P.C
was
maintainable and was rightly filed by the
petitioner, which was arbitrarily rejected
by
the
revisional
court,
as
not
maintainable.

5. For convenience, the provision of
Section 115 of the C.P.C., as applicable to
U.P. is quoted hereunder:-

"115. Revision. (1) The High Court
may call for the record of any case which
has
been
decided
by
any
Court
subordinate to such High Court and in
which no appeal lies thereto, and if such
subordinate Court appears-

(a) to have exercised a jurisdiction not
vested in it by law, or

(b) to
have
failed
to
exercise
a
jurisdiction so vested, or

(c) to have acted in the exercise of its
jurisdiction illegally or with material
irregularity,

the High Court may make such order in
the case as it thinks fit:

[Provided that the High Court shall
not, under this section, vary or reverse
any order made, or any order deciding an
issue, in the course of a suit or other
proceeding, except where-

(a) the order, if it had been made in
favour of the party applying for
revision, would have finally disposed
of the suit or other proceedings, or

(b) the order, if allowed to stand, would
occasion a failure of justice or cause
irreparable injury to the party against
whom it was made.

(2) The High Court shall not; under
this section, vary or reverse any decree or
order against which an appeal lies either
to the High Court or to any Court
subordinate thereto.

Explanation- In this section, the
expression "any case which has been
decided" includes any order made, or any
order deciding an issue, in the course of a
suit or other proceeding."

6. Upon hearing the learned counsel
for the petitioner and in view of the
division bench decision of this Court in
the case of Ram Babu Verma (supra),
admittedly, a receiver has not been
appointed as yet by the trial court and
names has been invited from the parties.
Consequently, no appeal is maintainable
under Order 43 Rule l(s) against the order
dated 26.4.08.

7. The question is, whether a
revision is maintainable under Section
115 of the C.P.C. or not?

8. From a perusal of the impugned
order of the trial court, the application
No.12 Ga for appointment of a receiver
was allowed subject to certain conditions
and one of the condition was, that the
parties were directed to give the names of
two persons for appointment of a receiver.

9. Consequently, this Court is of the
opinion that the application No. 12 Ga of
1 All] Somaroo V. Smt. Prakriti Acharya and others
151
the opposite party, has not been fully
allowed as yet and is still subject to
certain conditions. Consequently, the
issue with regard to appointment of a
receiver, has not been finally decided and
does not come under the category of the
explanation provided under Section 115
of the C.P.C. The impugned order is not a
case which has been decided finally nor
does the impugned order decides the issue
finally. Final order would be passed when
a receiver is appointed, against which, the
petitioner has a remedy of filing an appeal
under Order 43 Rule 1(s) of the C.P.C.

In view of the aforesaid, this Court is
of the opinion that the court below has
rightly rejected the revision, as not
maintainable. The writ petition fails and is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 60517 of 2008

Somaroo

...Petitioner

Versus
Smt Prakriti Acharya and others

 ...Respondents

Counsel for the Petitioner:
Sri Sharad Chandra Upadhyay

Counsel for the Respondents:

Code of Civil Procedure-Order VIII Rule
1-written
statement
filed
after
the
period-prescribed objection about taking
on record-held-even after amendment
this provision not mandatory-secondly
when the exparte-Decree set a side at
once written statement filed without any
further delay-can not be discarded Court
below rightly accepted the same.

Held: Para 5 & 6

In the present case, the order to proceed
ex parte against the defendants was
allowed
on
payment
of
cost,
and
pursuant thereto, the written statement
was filed immediately. Once ex parte
proceedings
are
recalled,
the
time
elapsed during the interim period was
liable to be ignored, for which, no
explanation or reason was required to be
given. The trial court passed an order on
17.4. 2007 recalling the ex parte decree
against the defendants, and on the same
day, the written statement was filed
without any further delay.

Consequently, this Court is of the opinion
that the order of the trial court keeping
the written statement on the record,
does not suffer from any error of law.
Case law discussed:
AIR 2005 SC 3353, (2005) 4 SCC 480, (2005)
6 SCC 705, AIR 2006 SC 396

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner filed a suit for
injunction. It transpires that the trial
court proceeded ex parte against the
defendants,
but
subsequently,
an
application for recall of the order was
filed by one of the defendants, which
was
allowed
by
an
order
dated
17.11.2007
on
payment
of
cost,
pursuant to which, the written statement
was filed and it was taken on record.
The petitioner filed an application
before the trial court praying that the
written statement should not be taken on
record and should be rejected in view of
the fact that the written statement was
filed
after
the
stipulated
period,
provided under Order VIII, Rule 1 of
the Code of Civil Procedure. The said
application was rejected by the trial