1. This appeal is directed against an order by which aReceiver has been appointed in a mortgage suit under Or. 40, r. 1 of the Codeof 1908. The mortgagee commenced a suit to enforce his security, on the 10thJanuary 1910. An ex parte decree was made on the 22nd February 1911. On the 2ndMarch following, the mortgagee applied for the appointment of a Receiver. Thatapplication has been granted and Mr. G. M. Dey, Barrister-at-Law, has beenappointed Receiver. On behalf of the Defendant in the mortgage suit, the orderhas been questioned before us on two grounds; namely, first, that a Receiver isReceiver is unnecessary for the purposes of the mortgage suit because aReceiver has already been, appointed in a partition suit amongst the owners ofthe properties ; and, secondly, that the appointment of the Receiver ispremature, because under the mortgage decree the mortgagee is not entitled toappropriate the profits of the properties given as security. In our opinionthere is no substance in the first contention, but the second must prevail. Inso far as the first contention is concerned, it has been stated to us that in1901 a partition suit was commenced amongst the owners of the properties inwhich a consent decree was made on the 31st May 1902. With a view to giveeffect to that decree, a Receiver was appointed. The properties given by way ofmortgage include, however, not merely the properties under the charge of theReceiver in the partition suit, but also two other properties. In so far as thelatter properties are concerned, the appointment of the Receiver in thepartition suit clearly does not operate as a bar. But we are of opinion thateven in respect of the other properties, a Receiver may very well be appointedin the mortgage suit, although a Receiver has been appointed in the partitionsuit. The Receiver in the partition suit acts under the direction of the Courtin which that suit is pending and the sums collected by him are bound to beapplied for the benefit of the parties to that litigation, under the directionof the Judge. In other words, the Receiver is bound to pay the money eitherinto the hands of the proprietors or to their creditors and other personsentitled to the proceeds of the properties. On the other hand, if a Receiver isappointed in the mortgage suit he is bound to apply the proceeds for thebenefit of the mortgagee. It has been suggested, however, that if differentpersons are appointed Receivers in the partition suit and the mortgage suit,there may possibly be a conflict between them, because undoubtedly the twoReceivers could not simultaneously collect the proceeds of the same properties.[Searle v. Choat 25 Ch. D. 723 (1884). Beach on Receivers, sec. 233]. We are ofopinion that there is no substance in this contention. The difficulty my beavoided either by the appointment of the same person as Receiver in the twosuits, or if different persons are appointed as Receivers, the collection maybe made by one of the Receivers only, (for instance, by the Receiver in thepartition suit), but the sums collected by him and payable to the mortgagorsplaced in the hands of the Receiver in the mortgage suit to be applied for thebenefit of the mortgagee under the direction of the Judge. [Cf. MadaneswerSingh v. Mahamaya Prosad Singh 13 C. L. J. 487 (1911)]. We are of opinion,therefore, that the first ground urged by the learned Vakil for the Appellantcannot be sustained.

2. In so far as the second contention is concerned, it hasbeen urged that the object of the appointment of a Receiver in a mortgage suitis to secure the application of the profits of the mortgaged properties for thebenefit of the mortgagee. If the decree is for sale, and if it is establishedthat the security is not sufficient to satisfy the judgment-debt, a Receiver willbe appointed almost as a matter of course, specially if there has been defaultin the payment of interest. [Weatherall v. Eastern Mortgage Agency Co. 13 C. L.J. 495 (1911), Hopkins v. Worcester Canal Co. L. R. 6 Eq. 447 (1868), Herbertv. Greene 3 Ir. Ch. 273 (1854), Hacket v. Snow 10 Ir. Eq. 220]. But here theposition is different. The mortgagee has obtained a decree for foreclosure,which does not entitle him to recover even the costs of the litigation from themortgagors personally. Whether the decree has in this respect been properlydrawn up or not, we are not called upon to consider. But under the decree as itnow stands, the only right of the mortgagee is to foreclose the mortgagors andto take the property in lieu of his dues on his security ; he is not entitledto the profits of the property. Consequently, a Receiver need not be appointedat this stage, because even if a Receiver were appointed, he could not applythe profits of the property for the benefit of the mortgagee. There is no suggestionthat the properties are liable to be sold away in satisfaction of paramountcharges. The position may be compared to that of a mortgagee who has the legalestate and can recover possession by ejectment. [Silver v. Bishop of Norwich 3Swanston 115n. (1816), Berney v. Sewell 1 J. & W. 647 (1820), Sturch v.Young 5 Beav. 557 (1842), Ackland v. Gravener 31 Beav. 482 (1862)]. From thispoint of view, the second objection of the Appellant must be sustained.

3. The result is that this appeal is allowed and the orderof the Court below discharged on the ground that the application for theappointment of a Receiver is premature. We may add that a contingency may verypossibly arise which may necessitate the appointment of a Receiver in theseproceedings. The time allowed by the decree for the payment of thejudgment-debt by the mortgagors has just expired, and, as we have beeninformed, the amount has not yet been paid. Consequently, under Or. 34, r. 3,of the Code of 1908, if the mortgagee applies for the final decree in theforeclosure suit, he is entitled to have the final decree drawn up as a matterof course, unless indeed the mortgagors can establish good cause for anextension of time which can be granted only on terms. As soon as the finaldecree is made in his favour, the mortgagee is entitled to apply for executionand delivery of possession ; such possession may be delivered under r. 3 of Or.34 or upon an application under sec. 51 of the Code. But it has been suggestedthat if an application of this character is made, the judgment-debtors arelikely to apply for an adjournment of the proceedings, inasmuch as some of themhave applied to have the ex parte decree vacated, while an appeal has also beenpreferred against that decree to this Court. If such an application is made,the successful decree-holder is entitled to contend that as now he has becomethe full owner of the property, he is entitled to possession and to receive theprofits thereof. If the judgment-debtors seek to keep him out of possession ofthe property he may reasonably demand either security for the profits or theappointment of a Receiver under clause (d) of sec. 51 of the Code. It will,therefore, be open to the decree-holder to apply at once to the SubordinateJudge for a final decree under r. 3 of Or. 34 ; and unless it is proved thatthe mortgage-debt has been satisfied, or that there are good grounds forextension of time, (upon terms as to security or appointment of Receivers), itwould be incumbent upon the Subordinate Judge to make the final decree. As soonas he makes the decree, the decree-holder will be entitled to be placed inpossession. If at this stage the judgment-debtors apply that they may beallowed to continue in possession, occasion may arise for the appointment of aReceiver or the demand of security from the judgment-debtors. With theseobservations, we allow the appeal, but without costs.

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Khubsurat Kuer and Ors. vs. Saroda Charan Guha (23.08.1911 -CALHC)