IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 FAO.No. 79 of 2007() -------------------- IA 296/2006 IN OS.28/2006 of SUB COURT,THODUPUZHA APPELLANT/PETITIONER/PLAINTIFF ---------------------------------------- V.S.GOPINATHAN NAIR, VALLITHEKKEDATHU HOUSE, ALPARA KARA, ARAKULAM VILLAGE. BY ADV. SRI.A.K. ALEX RESPONDENTS: RESPONDENTS/DEFENDANTS ---------------------------------------------------- 1. SEKHARAN, S/O.SIVARAMAN, KIZHAKKETHERUVATHIL VEEDU, THUDANGADU KARA, MUTTOM VILLAGE NOW RESIDING AT KIZHAKKETERUVATHIL VEEDU, (RENJITH NIVAS), ARAKULAM VILLAGE. 2. ALEX JACOB, PERUMPALLYKUNNEL HOUSE, LALAM KARA, DO. VILLAGE, MEENACHIL TALUK. 3. SAMUEL, S/O.MOSES, PAREPURACKAL HOUSE, KALIAR KARA, VANNAPURAM VILLAGE. ADVS. M/S. C.K.VIDYASAGAR & T.I.ABDUL SALAM FOR R.1 ADVS. M/S. MATHEW JOHN (K) & SUJESH MENON V.B. FOR R.2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = F.A.O. 79/2007 = = = = = = = = = = = = = DATED THIS, THE 10TH DAY OF AUGUST, 2009. J U D G M E N T Raman, J. This is an appeal filed against an order dismissing an application seeking appointment of a receiver, filed under Order XL Rule 1 of the Code of Civil Procedure. 2. The respondents made a preliminary objection that the appeal itself is not maintainable under order XLIII Rule 1 read with Section 106 C.P.C. And Section 6 of the Specific Relief Act. The suit is one filed under Section 6 of the Specific Relief Act, alleging that the plaintiff was dispossessed, without his consent, of an immovable property otherwise than in due course of law. As a matter of fact, in Para 1 of the statement of facts, it is specifically stated that the suit is filed under Section 6 of the Specific Relief Act for re-possession. The trespass is alleged to have been committed on 28.3.2006 and the suit was filed immediately thereafter. It is his further case that the third respondent was the original owner of the plaint schedule property who sold the same to the second F.A.O. 79/2007 2 respondent. The appellant/plaintiff purchased the property from the second respondent as per an exchange deed and thus, he was in possession and enjoyment of the property from 30.3.2005 and started living there after renovation and taking yield from the rubber trees and other improvements. While so, on 28.3.2006, the first respondent forcefully evicted the appellant and his family from the plaint schedule property and hence the suit for recovery of possession was filed. In the suit, an interim application was filed seeking for appointment of a receiver alleging that there is every likelihood of the first respondent committing waste in the property and that her has no right to take the income therefrom. 3. The first respondent/defendant, on the other hand, contended that he had entered into an agreement for sale with the third respondent on 31.1.2004 for a total consideration of Rs.3,60,000/-, that the sale deed was to be executed on or before 30.8.2004, that on the same day, an amount of Rs. 10,000/- was paid towards advance sale consideration, that he agreed to discharge the liabilities with the Bank subsisting on the property, that on 26.2.2004, he executed a supplementary agreement with the third respondent making further payment inter alia stating that if and F.A.O. 79/2007 3 when the first respondent pays Rs. 3,00,000/- to the third respondent directly or by remitting at the Bank, he will be permitted to take the yield from the plaint schedule property, that the first respondent claimed that he has paid Rs. 3,00,040/- before 19.7.2004 and from that date onwards, he was taking the yield from the property, that the third respondent has resiled from the agreement for sale and in collusion with Respondents 2 and 3 they have created a sale deed in favour of the second respondent and also the exchange deed with the appellant, that the appellant also is a party to the collusion, that the appellant also did not get possession of the property and the documents which he relied are sham documents and that he has not committed any trespass; but he is in lawful possession of the property. He placed reliance on the judgment and decree in O.S. 70/2004, which happened to be dismissed as not pressed. According to the plaintiff, the said suit itself was happened to be dismissed by a fraud played upon by the counsel concerned and in fact he did not have information regarding the posting of the case nor had the plaintiff given any instruction for non prosecution. 4. The court below, by the impugned order, considered the question as to who is to be found in possession of the plaint F.A.O. 79/2007 4 schedule property prima facie and found against the appellant and dismissed the application for appointment of a receiver against which the present appeal is filed. 5. It is true that as per Order XLIII of the Code of Civil procedure, this is an appealable order, being an order under Rule 1 and Rule 4 of Order 49. But going by Section 106 of the Code of Civil Procedure, where an appeal from any order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court, not being a High Court, in the exercise of appellate jurisdiction, then to the High Court. That is to say, an appeal from an order passed under Order 49 Rule (i) and (4) would lie to the same court to which an appeal will lie from the decree in the same suit. Now, the suit itself is one filed under Section 6 of the Specific Relief Act. As per Section 3 of the Specific Relief Act, no appeal shall lie from any order or decree passed in any suit instituted under the section nor shall in review of any such order of the decree. Thus, not only that no appeal lies against the decree passed in the present suit, but no appeal will also lie from any order passed in the suit. Thus, going by Section 106 of the Act, an appeal will lie only F.A.O. 79/2007 5 to a court to which ordinarily an appeal will lie in the suit and in view of Section 6 (3) of the Specific Relief Act, no appeal will lie from the decree in the present suit. If so, no appeal shall lie from the order impugned. This is made clear by Section 6(3) of the Specific Relief Act itself. It provides that no appeal shall lie from any order or decree passed in any suit instituted under that section. This being an order passed in the suit, though at the interlocutory stage, even going by Section 6(3) of the Specific Relief Act, an appeal will not lie. 6. At this stage, learned counsel appearing for the appellant prayed that this may be treated as a revision filed under Section 115 of the Code of Civil Procedure. We have considered the said question. As per the proviso to Section 115 CPC, this Court cannot vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding except where 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. The order now passed, even if it is reversed by this Court, will not result in final disposal of the suit and hence section 115 also will not lie. F.A.O. 79/2007 6 In the result, we dismiss the appeal. We add to say that the very suit itself being filed in 2006 and the allegation being that the plaintiff was dispossessed shortly before the institution of the suit, if the suit is still pending and if an application is filed for early disposal, the court shall expedite and dispose of the suit at any rate, within a period of three months. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. KNC/-