DARBHA VENKATA SOMAYAJULU Vs. POTULA SATHIRAJU

JUDGEMENT

(1.) This is an appeal from the order of the Principal Subordinate Judge of Cocanada dated 29 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 18 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/s. 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.