BHAGWATINAND Vs. RAMCHANDRA SHIVPRATAP

JUDGEMENT

(1.) THIS appeal is directed against an 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.