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Gobind Ram and ors. Vs. Jwala Pershad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in43Ind.Cas.533
AppellantGobind Ram and ors.
RespondentJwala Pershad and ors.
Excerpt:
civil procedure code (act v of 1908), order xl, rule i - receiver, appointment of mortgage, simple, suit on--receiver, whether can be appointed. - - the decrees directed that the plaintiffs were to discharge the prior incumbrancer within the time named in the decree and that thereupon they would be entitled to sell the property for the amount which they had to pay the prior incumbrancer as well as the amount due on their own mortgage. they obtained one or more extension of time but even then they failed to pay off the prior incumbrancer......was due) was also made a party. the decrees directed that the plaintiffs were to discharge the prior incumbrancer within the time named in the decree and that thereupon they would be entitled to sell the property for the amount which they had to pay the prior incumbrancer as well as the amount due on their own mortgage. the mortgaged property seems to be shares in a ginning factory. the plaintiffs did not pay the prior incumbrancer within the time allowed. they obtained one or more extension of time but even then they failed to pay off the prior incumbrancer. the plaintiffs have filed an appeal against the decree in this court, alleging that they have been ordered to pay too much to the prior incumbrancer. this appeal is pending. in this state of facts an application was made to the.....
Judgment:

1. This appeal arises under the following circumstances. A mortgage sail; was brought and a preliminary decrees obtained for sale of the property on the 25th of September 1915. The plaintiffs were puisne incumbrancers and the prior in sum bracer (to whom a large earn was due) was also made a party. The decrees directed that the plaintiffs were to discharge the prior incumbrancer within the time named in the decree and that thereupon they would be entitled to sell the property for the amount which they had to pay the prior incumbrancer as well as the amount due on their own mortgage. The mortgaged property seems to be shares in a ginning factory. The plaintiffs did not pay the prior incumbrancer within the time allowed. They obtained one or more extension of time but even then they failed to pay off the prior incumbrancer. The plaintiffs have filed an appeal against the decree in this Court, alleging that they have been ordered to pay too much to the prior incumbrancer. This appeal is pending. In this state of facts an application was made to the Court below to appoint a Receiver. The Court below did appoint a Receiver, and it is against that order that the present, appeal has been preferred. The Court in its order states that the security is not sufficient for the amount of the incumbrances and that the machinery is wearing out from use, and the learned Judge seems to have considered that these circumstances justified the appointment of a Receiver. In our opinion a Receiver could not have been appointed under the circumstances of the present case. A mortgagor, where the mortgage is a simple mortgage, is entitled to remain in possession of the mortgaged property until such time as that property has been brought to sale in due course of law. Order XL, Rule 1, provides for the appointment of a Receiver by the Court It has enacted that where it appears to the Court to be just and convenient a Receiver may be appointed. Clause 2 provides that nothing in the rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove. It seems to us abundantly clear that neither the plaintiff nor the prior incumbrancer has any present right to remove the mortgagor from possession of the mortgaged property. Furthermore, the mortgaged property is only a fractional share, and the Receiver could only be put into receipt of the parotids of the, mortgaged share. He could not take upon himself the management of the factory. We allow the appeal, set aside the order of the Court below and dismiss the application for the appointment of a Receiver with costs in all Courts. If the Receiver has secured any profit, he must pay the money received by him to the appellants in respect of their share.


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