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Darbha Venkata Somayajulu Vs. Potula Sathiraju - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad875; 159Ind.Cas.93
AppellantDarbha Venkata Somayajulu
RespondentPotula Sathiraju
Cases ReferredSubbaraju v. Seetharama Raju
Excerpt:
- .....time after the suit was filed but before the decree had been passed in the suit, and there was a previous application by the plaintiff mortgagee for the appointment of a receiver. on that application the order passed by the court was that defendant 21 should deposit into court as annual rent rs. 800 every year in respect of the lands in his possession, and the rent for the year 1929 was actually deposited into court. the sale was held some time in october 1930 and the execution petition was adjourned to 18th november 1930 for confirmation of the sale. the present application for appointment of a receiver was made after the sale and before the date fixed for confirmation. the main ground on which the appointment of a receiver was asked for is stated in para. 6 of the affidavit of the.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the Principal Subordinate Judge of Cocanada dated 29th November 1930 appointing a Receiver for harvesting and selling certain crop existing on the lands which were sold in execution of a mortgage-decree. The application was made by the decree-holder purchaser and it was opposed only by defendant 21 who claimed to be in possession of the properties under a lease granted to him by the mortgagors. The lease had been granted some time after the suit was filed but before the decree had been passed in the suit, and there was a previous application by the plaintiff mortgagee for the appointment of a Receiver. On that application the order passed by the Court was that defendant 21 should deposit into Court as annual rent Rs. 800 every year in respect of the lands in his possession, and the rent for the year 1929 was actually deposited into Court. The sale was held some time in October 1930 and the execution petition was adjourned to 18th November 1930 for confirmation of the sale. The present application for appointment of a Receiver was made after the sale and before the date fixed for confirmation. The main ground on which the appointment of a Receiver was asked for is stated in para. 6 of the affidavit of the purchaser.

2. The purchaser claimed the crops as his and alleged that if the, crops were appropriated by others, he would not be able to recover their value and that till the sale was confirmed he was not in a position to apply for delivery of the crops to himself. He appears also to have contended that the lease in favour of defendant 21 was a collusive one and was not acted upon, but this, contention was really not open to him in view of the order on the previous application for the appointment of a Receiver to which he did not take any objection by way of review or appeal That order recognised the right of defendant 21 as a lessee and directed him to deposit Rs. 800 a year and the rent for one year was actually deposited to the credit of the plaintiff in the suit. It is not now open to the plaintiff after getting the benefit of this order to question it or to question the basis on which that order rested, namely that defendant 21 was a lessee and as such liable to pay rent. The application was opposed on the ground that it was not maintainable, especially in view of the order on the previous application for the appointment of a Receiver which was in force, and also on the ground that till the sale was confirmed defendant 21's lease would not be determined. He also alleged that it would be a great hardship if the crops which had been brought into existence at great expense by him and his subtenants were to be taken away and enjoyed by the purchaser.

3. The learned Subordinate Judge appears to have based his order appointing a Receiver on the ground that defendant 21's rights as a lessee came to an end when the sale was actually confirmed, and though this confirmation of sale was subsequent to the filing of the application the order appointing a Receiver was made only after the sale was confirmed. It appears to have been contended before him on the strength of the ruling in Subbaraju v. Seetharama Raju 1916 Mad. 323 that the lease in favour of defendant 21 was not affected by the doctrine of lis pendens as such a lease was an ordinary incident of the beneficial enjoyment of a mortgagor allowed to remain in possession.

4. The learned Subordinate Judge, however, preferred to follow Ramaswami Aiyanagar v. Govinda Iyer 1917 Mad. 128, but failed to notice that what was laid down therein did not apply to the facts of thexase before him, because in the present case the lease came into existence before the decree whereas in the Ramaswami Aiyanagar v. Govinda Iyer 1917 Mad. 128 case the lease came into existence subsequent to the decree. The learned Subordinate Judge gave no other reason for not following the ruling in Subbaraju v. Seetharama Raju 1916 Mad. 323. The main contention urged in this appeal by defendant 21 is that the lower Court should not have appointed a Receiver in the face of its own order on the previous application for the appointment of a Receiver according to which defendant 21 was ordered to deposit into Court Rs. 800 every year as rent. It is also contended that even apart from this previous order the appointment of a Receiver was not just or convenient in the circumstances of the case.

5. As regards the first point it appears to me that though the Court was not absolutely precluded from appointing a receiver by reason of its previous order, nevertheless the appointment should not have been made unless it was required imperatively in the interests of justice, because it had been considered by the Court at an earlier stage that the deposit of Rs. 800 as annual rent was a sufficient safeguard or protection for the interests of the plaintiff in the suit, and no further protection was necessary unless a danger which was not expected or an injury which was not apprehended; when the previous application was made had come into existence subsequently, lit does not appear however that there was any new danger, or injury threatened to the plaintiff-purchaser's interest. What he purchased at the auction was only the right, title and interest of the mortgagors whether in the land or in the crops, and there could be no real injury done to the purchaser if the tennant in possession enjoys the crop which had come into existence as a result of his labour. On the other hand it would be a very grave injustice to a person who has laboured to deprive him of the fruit of his labours and give it away to another person who is not entitled to it. The plaintiff-purchaser had only the right of the mortgagors and he could not claim therefore the crop itself, but only his share of the crop as represented by the rent. The appointment of a receiver could be justified only if the plaintiff-purchaser was entitled to the entire crop. The money spent by the tenant in bringing the crop into existence is lost to the tenant and what is lost by the tenant is a gain to the purchaser. This again is not a lawful gain to which the purchaser is entitled and an appointment of a receiver which gives this unjust gain to one of the parties cannot certainly be regarded as either just or convenient in the sense in which these words are used in the Code. It goes without saying that just or convenient' does not mean just or convenient to one party or the other but, just or convenient according to judicial notions of what is right and just. I do not think it is in consonance with any notions of justice that a man should be allowed to profit by the labours of another.

6. As regards the second contention, it is covered practically by what I have said already. Even apart from the previous order I do not think the circumstances justified or made it just and convenient to appoint a receiver, the result of which would be to give the purchaser a benefit to which he is not in law entitled. Even assuming that the plaintiff-purchaser could be given all the reliefs that he would have been entitled to after confirmation of the sale even in an application made prior to the confirmation of the sale, I am of opinion that he would not have been entitled to get the actual crop on the land which was raised by a tenant and to which crop the mortgagor himself would not have been entitled. In this case in particular, in view of the previous order it must be assumed that the lease has been for the purpose of this case treated as a lease binding on the parties till the disposal of the suit; and according to it defendant 21 is entitled to remain in possession so long as he deposits Rs. 800 as annual rent. This order was a just order and there was no necessity in my opinion to vary it to the detriment of the person in possession in the way it has been done by the appointment of a receiver in November 1930. The view of the learned Subordinate Judge that after the confirmation of the sale all rights accrued subsequent to the mortgage must be considered to have come to an end, including even rights under a lease of an ordinary character which is an ordinary incident of enjoyment by a mortgagor who is allowed to remain in possession, cannot be supported in view of the ruling in Subbaraju v. Seetharama Raju 1916 Mad. 323. If the lease in favour of defendant 21 is taken as being one which is not affected by the doctrine of lis pendens, it is obvious that the purchaser would not be entitled to ignore the lease and claim the crops on the lands. It is however unnecessary to pursue this aspect of the case further, for I am satisfied that the lower Court has misdirected itself in more than one respect in appointing a receiver or rather in coming to the conclusion that it was just and convenient to appoint a receiver. The order was unnecessary and undesirable and, what is more, it was contrary to ordinary notions of justice the appeal must therefore succeed. The order of the Subordinate Judge appealed from is set aside. The fee of the receiver must be paid by the plaintiff-purchaser at whose instance he was appointed and the costs of the appellant in this appeal and in the Court below must also be paid by the plaintiff-purchaser. The money deposited into Court by the receiver as value of the crops must be paid to the appellant less Rs. 800 which may be taken out of the Court by the plaintiff-purchaser. If the amount so deposited is loss, the difference may be realized by the plaintiff-purchaser from the appellant or set off against the amounts due by him under this order.


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