V.R. Newaskar, J.
1. This appeal is directed againstan order refusing to appoint a receiver.
2. Material facts are that appellant Bhagwatinand alias Dudhadhari Brahmachari obtained a final mortgage decree against the respondents Ramchandra and Shankarlal in Civil Original Suit No. 12 of 1952. This decree was put into execution. The amount sought to be recovered was Rs. 32,418-14-0. After the suit was decreed in the mortgage suit the other sons of the mortgagor Ramchandra who is respondent No. 1, filed a declaratory suit for obtaining a declaration that the mortgage was not binding upon them as the same was not made for legal necessity and had been for immoral purpose. In this suit which is numbered as Civil Original Suit No. 17 of 1957, an order for temporary injunction was passed restraining the decree-holder Bhagwatinand from executing the mortgage-decree by the sale of the mortgaged property. When the decree-holder was faced with this situation he submitted an application before the executing Court for appointment of a receiver. The executing Court rejected the application on the ground that in the initial execution petition execution of the decree by this mode was not asked for and that at a subsequent stage of the execution one mode of execution cannot be converted into another. Reliance was sought to be placed upon the decision of the Nagpur High Court reported in' ILR (1948) Nag 230 : (AIR 1948 Nag 272), Deorao v. Ramchandra in that connection.
3. The present appeal is directed against that order.
4. It is 'contended by Mr. Chaphekar for the appellant that the view taken by the Court below regarding the incompetency of the application for appointment of a receiver in the course of the execution petition is untenable. He contended that apart from the jurisdiction of the Court to direct execution by appointing a receiver by recourse to powers under Section 51, C. P. C. the executing Court has ample powers under Order 40, Rule 1, C. P. C. to appoint a receiver in a proper case. The terms of Order 40, Rule 1 C. P. C. are sufficiently wide for the purpose and the only limitation is that it should be just and convenient to appoint a receiver. In the present case, it was pointed out By the learned counsel, the decree-holder has to recover large amount of money nearly Rs. 32,000. The recovery is stayed by reason of a suit filed by the sons of one of the judgment-debtors. The suit may take considerable time and in the meanwhile the property which is already of lesser value than theamount which the decree-holder has to realise, would deteriorate in value.
In these circumstances it is but proper to appoint a receiver to prevent the decree-holder from being put to unnecessary losses in case the sons' suit fails. The appointment of a receiver in this case is not sought for as a mode of execution for realisation of the mortgage dues. That mode, no doubt, cannot be asked for without exhausting the security, i. e., the mortgaged property. But inasmuch as the mortgaged property is yielding income it is just and fair that the income should be available to the decree-holder on the failure of the sons' suit.
5. The contention of the learned counsel for the appellant appears to be well founded. There is nothing in the wording of Order 40, Rule 1, C. P. C., to suggest that a receiver cannot be appointed after a decree is passed and an execution petition for enforcing the decree has been filed. Order 40, Rule 1, C. P. C. provides :
'(1) Where it appears to the Court to be just and convenient, the Court may by order : --
(a) appoint a receiver of any property whether before or after decree;
6. It is clear from this provision that the appointment of a receiver can be made even after the decree is passed. The provision does not indicate that after the passing of the decree this power can be resorted to only as a mode of execution as contemplated under Section 51, C. P. C.
7. In AIR 1927 Lah 190, Atta Ullah Khan v. Bala Mal, the facts were that the property was attached in execution. Objection was put forward to such an attachment. This objection was disallowed and the objector filed a regular suit for a declaration regarding his title to the property. He succeeded right up to the High Court and the decree-holder preferred appeal to the Privy Council. The decree-holder in the meanwhile applied for appointment of a receiver in order that his interest for realisation of his dues should be safe-guarded, keeping in view the possibility of his appeal to the Privy Council proving successful. Thereupon the executing Court ordered the objector to furnish security for keeping proper account of the income and for restitution thereof. On failure of the objector to comply with this the Court appointed a receiver of the property. An appeal was preferred against this order of appointment of a receiver. It was contended on behalf of the decree-holder that no appeal was competent as the objector was not a party to the appeal suit in which the decree was passed.
It was further contended that the order appointing the receiver having been made under Section 51(d) C. P. C. the appeal was not tenable on the ground that it was an order under Order 40 Rule 1 C. P. C. It was held by the Lahore High Court with reference to the second contention that Order 40 Rule 1 C. P. C. is a general provision relating to appointment of receiver and even if an order appointing a receiver is made in an execution proceeding it cannot be said that it does not fall within the purview of Order 40 Rule 1 C. P. C. and the person affected by it has no right of appeal under Order 43 Rule 1 C. P. C. The learned Judge relied upon the decision of Judicial Commissioner's Court at Nagpur reported in AIR 1924 Nag 165, Hamswarup v. Raghunandan, in that connection.
8. In A I R 1933 All 227, Mohammad Ishaq v. Om Prakash, the judgment-debtor put forward certain objection regarding the executability of the decree. The decree-holder thereupon submitted an application for the appointment of a receiver. When the judgment-debtor applied for stay of executionthe Court stayed the execution for sale but appointed a receiver. This was challenged. It was held by Mukerji, Acting Chief Justice, who delivered the leading judgment :
'On merits there can be no doubt that the order passed by the learned Subordinate Judge is eminently just and fair. If the decree-holder is not going to have his decree executed it is not fair to the decree-holder that the plaintiff should enjoy the income of the property without making any payment.'
The third is a decision of Bhide J., reported in ILR 1941 Lah 590, Firm Pahlad Dass Bhagwan Dass v. Shanti Sagar. It was held in that case that the power of appointing a receiver under Order 40 Rule 1 C. P. C. can be exercised in the course of a suit or in execution and in either case the sole criterion is whether such appointment is 'just and convenient'. In that case a decree was obtained on the basis of an award for a sum of Rs. 80,000/-. The amount was to be paid with interest by monthly instalments. There was a default clause providing for the payment of the whole amount in case of default of three successive instalments. The judgment-debtor did not pay anything. An application for execution was made. Objections were made to the attachment of certain properties which had been attached ia the course of that execution. Later on certain payments were made and the second execution application was then made.
Certain objections were raised by the judgment-debtor under Order 21 Rule 66 C. P. C. as well as under Order 21 Rule 2, C. P. C. Considerable time was spent in getting the service effected on witnesses. Ultimately the judgment-debtor's counsel made a statement that he would withdraw all objections on condition that the decree-holder gave three months time. The decree-holder agreed to this. The Court did not permit this and suggested that the execution petition might be disposed of and 'fresh execution petition might be made later on. This course was adopted and a fresh execution petition was filed after the expiry of the period and properties were re-attached. The execution was thus delayed due to the attitude of the judgment-debtor. The decree-holder thereupon submitted an application for appointment of a receiver in view of the dilatory tactics employed by the judgment-debtor. It was held that there is no force in the contention that under the Indian Law a receiver can only be appointed it there are difficulties arising from the nature of the property against which execution is sought and which prevent the decree-holder from obtaining relief by the ordinary method available for the satisfaction of the decree i.e. by attachment and sale of his property. The application was allowed.
9. The decision in AIR 1933 All 227 was followed by in Madh B L J 1955 H C R 604, Fulchand v. Ramanlal.
10. In view of the principles thus laid down in the above mentioned cases it is clear that the learned Judge of the Court below was in error in holding that a receiver cannot be appointed in the course or execution proceedings.
11. The decision in I L R 1948 Nag 230 : (A I R 1948 Nag 272) has no application. The question involved in that case was regarding limitation under Section 48 of the Civil Procedure Code. An application for execution was submitted for attachment of moveable property. Later on the mode of execution was sought to be altered by securing appointment of receiver. This was done after the expiry of 12 years. ' It was held that this attempt of change in the mode of execution by appointing a receiver amounted tofresh application for execution and was barred under Section 48, C. P. C.
12. In view of the principles laid down in these decisions the refusal of the Court below to consider the application of the appellant on merits on the ground that such a prayer amounted to an alteration in the mode of execution is clearly erroneous.
13. The appeal is, therefore, allowed. The order thus passed is set aside and the case is sent back to the Court below for consideration of the appellant's application on merits in light of the principles laid down in the above cases and the provisions of Order 40 Rule 1, C. P. C.
14. The appellant is entitled to get his costs of this appeal from the other side who shall bear its own.