GOCHURAN SINGH CHAUDHURY Vs. RAMBALLABH DAS

JUDGEMENT

(1.) The appellant is a receiver appointed in the insolvency of defendants 1 and 2 who executed a mortgage in respect of sixteen annas of village Kalayanpur and 10 annas 8 pies of Sanjhauli. The mortgagee sued on the footing of his mortgage and obtained a preliminary decree on 8 June 1935. An appeal against that decree is pending in this Court. In the meanwhile the mortgagors were declared insolvent and a receiver was appointed who has taken possession of Kalayanpur. The plaintiffs in the mortgage suit also applied for the appointment of a receiver. In that suit the Court below has passed an order appointing a receiver. An appeal was preferred against that order by the sons of the mortgagors who were codefendants in the suit. Their appeal was not pressed and has been dismissed.

(2.) In the present appeal it has been contended by the learned advocate for the appellant that a receiver should not have been appointed in the suit after the receiver of the property of the insolvents had been appointed by the insolvency Court; and it was further argued that the Court has no power to appoint a receiver at the instance of a simple mortgagee. For this latter proposition reliance was placed on the decision of this Court in Nrisingha Charan Nandy V/s. Rajniti Prasad Singh 1932 Pat 360. For the respondents reliance was placed on the decisions in M. Paramasivan Pillai V/s. Ramasami Chettiar 1933 Mad 570 and Rameshwar Singh V/s. Chuni Lal Shaha 1920 Cal 545 in which it was held that a receiver may be appointed at instance of a simple mortgagee. It is not necessary in the circumstances of this case to attempt to reconcile the divergence of views revealed by these decisions; but it may be mentioned that considerations which apply in a suit between the mortgagee and his mortgagor may differ considerably from the considerations which arise where the interests affected are not of the mortgagor only but also of the mortgagor's creditors.

(3.) In the present case the appointment of a receiver in the mortgagee's suit will have the effect of depriving the creditors in the insolvency proceedings of the benefit of the usufruct of the mortgaged property although the mortgagee has not yet obtained a final decree in the mortgage suit. The order we propose to make in the present case is to set aside the order appointing the receiver in the mortgage suit so far as village Kalayanpur is concerned and to direct the receiver in insolvency to repay to the mortgagees the amount which they have spent to save the mortgaged property from sale for public demands and to see that future public demands are paid in due time to prevent the mortgaged property being sold. The appellant is entitled to his costs. Hearing fee two gold mohurs. Rowland, J.