Das, J.

1. Misc. Appeal No. 96 of 1920 is directed against the order of the Subordinate Judge of Purnea, dated 11-3-1920, Misc. Appeal No. 97 of 1920 is directed against the order of the Subordinate Judge of Bhagalpur, dated the 12th April 1920. As there is some doubt whether the latter appeal is competent, the appellant has presented a revision-petition the subject matter of Civil Revision No. 127 of 1920, against the order of the Subordinate Judge of Bhagalpur, dated the 12th April 1920.

2. The material facts are these: On the 23-1-1918 the appellant obtained in the Court of the Subordinate Judge, Purnea, two mortgage-decrees against the Srinagar Raj, one for Rs.1,51,000 and the other for approximately rupees ten lacs. On 2-12-1919, the appellant applied in the Court of the Subordinate Judge, Purnea, for the appointment of a Receiver in respect of the mortgaged properties. The learned Subordinate Judge fixed 10-2-1920 for the disposal of the application. On 10-2-1920, the matter was adjourned to the 17th Feby, both sides having represented to the Court that there was a chance of settlement. On the 17th February when the matter was taken up, Babu Satyabrata Chatterji, who manages the Srinagar Raj under a power of attorney executed in his favour by the proprietor of the Raj, appeared before the Court and informed the Court by a petition that he had been appointed Receiver of the Srinagar Raj in money Suit No. 69 of 1920, and that the Court should not appoint another Receiver over the same properties, did not give the date of his appointment in his petition, and he stated that on coming to Purnea as Receiver he heard that there was an application pending that day in the Court of the Subordinate Judge, Purnea for the appointment of a Receiver.

3. It will be convenient now to trace the history of Money Suit No. 69 of 1920; which is as interesting as it is short. On the 30th January 1920 the respondent filed a suit in the Court of the Subordinate Judge, Bhagalpur for recovery of Rs. 50,000 on a hand-note executed by the Srinagar Raj in favour of the respondent. On the same day the respondent applied for attachment before judgment of the properties of the Srinagar Raj. On the 7th February the respondent changed his mind, and on that date he applied for appointment of a Receiver pending the disposal of the suit. The learned Subordinate Judge issued notice upon the Srinagar Raj to show cause why a Receiver should not be appointed, and fixed the 20th February for the disposal of the application. But the Srinagar Raj was unwilling to wait till the 20th February, and on the 11th February they consented to the appointment of Babu Satyabrata Chatterji as the Receiver of the estate. The Court dealt with the application on the 13th February and on that date appointed Babu Satyabrata Chatterji Receiver of the estate in money Suit No. 69 of 1920. His appointment on the 13th February just gave Babu Satyabrata Chatterji time to take a trip to Purnea and to accidentally hear of the application for the appointment of Receiver then pending in the Court of the Subordinate Judge, Purnea.

4. The events that happened subsequently may be briefly told. The learned Subordinate Judge of Purnea thought that the conduct of the Srinagar Raj was open to serious criticism, but taking the view that in appointing Babu Satyabratha Chatterji as the Receiver of the estate the learned Subordinate Judge of the Bhagalpur had acted with jurisdiction, and that be ought not to appoint another Receiver over the same properties, he rejected the application of the appellant. Miscellaneous Appeal No. 96 of 1920 arises out of the order of the Subordinate Judge of Purnea rejecting the application of the appellant for the appointment of a Receiver. The appellant thereupon presented an application to the Court of the Subordinate Judge, Bbagalpur and invited that Court in the circumstances which he fully set out in his petition, to recall the order which the learned Subordinate Judge had made on the 13th February, 1920 appointing Babu Satyabrata Chatterji as the Receiver of the estate. This application was rejected by the learned Subordinate Judge of Bhagalpur on the 12th April 1920, and Miscellaneous Appeal No. 97 of 1920 and Civil Revision No. 127 of 1920 arises out of the order passed by the Subordinate Judge, Bhagalpur, on the 12th April 1920.

5. While throwing not the slightest doubt on the bona fides of that claim of the respondent in Money Suit No. 19 of 1920. I must express my strong disapproval' of the method adopted by the Srinagar Raj in meeting the application presented by the appellant in the Purnea Court A critical study of the dates is sufficient to convict the Srinagar Raj not only of want of candour, but of dishonesty in the matter, and I have no doubt whatever that a gross and deliberate fraud was practised on the Court by the Srinagar Raj. On the 10th February, the date fixed by the Purnea Court for the disposal of the appellant's application, the defendants represented to the Purnea Court and to the appellant that there was no necessity for the appointment of a Receiver, as they were about to execute a trust deed in favour of certain respectable persons providing therein for the payment of the debts due to the appellant. On that date, they knew of the application for the appointment of Receiver in the Bhagalpur Court, and in my judgment, the representation made by them to the Purnea Court was untrue, but was made in order to give them time to manoeuvre out of a difficult position. On the 11th February, they consented to the appointment of their constituted attorney. Babu Satyabrata Chatterji, and, having succeeded in their object, they went to the Purnea Court on the 16th February, stated to the Court that there was little hope of the execution of any trust deed, and solemnly agreed to the appointment of Babu Biseshwar Prasad as the Receiver of the estate. The learned Subordinate Judge of Bhagalpur appears to have been greatly impressed by the fact that the defendants contented to the appointment of a Receiver in the Purnea Court For myself, I have no illusion in the matter. That was a bit of acting indulged in by the defendants in order to enable the Subordinate Judge of Bhagalpur to say what he has actually said. I have not the slightest doubt that the defendants were advised, at every stage, by their constituted attorney, Babu Satyabrata Chatterji, and it does not require much ingenuity to see through the game as played by the Srinagar Raj and their constituted attorney. I cannot regard the presence of Babu Satyabrata Chatterji in Purnea on 17th February as accidental or as due to his zeal in the discharge of his duties as Receiver. I have not the slightest doubt that he was present there according to arrangement, so that the Subordinate Judge of Purnea might be informed of his appointment as Receiver.

6. The fact that a fraud was practised on the Court is sufficient ground for the discharge of the Receiver, but in this case, the order is otherwise open to two serious objections. In the first place, there is no jurisdiction in the Court to appoint a Receiver at the instance of simple contract creditor, unless the creditor establishes a special equity in his favour for such appointment; in the second place a mortgagee was entitled to have the Receiver obtained by a simple contract creditor discharged, and a nominee of his own substituted. So far as the first question is concerned, the learned Subordinate Judge has an idea that the present code has given him unlimited powers to appoint a Receiver. That is pure delusion. The appointment of a Receiver is an equitable relief and will be only granted on equitable grounds; and when the applicant does not establish a special equity in his favour, it is impossible to say that it is "just and convenient "that a Receiver should be appointed. Now the first essential condition for the appointment of a Receiver is that the applicant must satisfy the Court that he as an "interest" in the property to be affected by the order. Now, how does a simple contract creditor show that he has an interest in the property over which he seeks the appointment of a Receiver Only if he shows that, though he may not have a specified charge on the fund so as to give him priority, still he has a right to be paid out of that particular fund. If a plaintiff had a right to be paid out of a particular fund, he could in equity obtain protection to prevent that fund from being dissipated so as to defeat his rights. This was established in Kerns v. Leaf (1864) 1 H. and M. 681=71 E.R. 299, and was adopted in Commins v. Perkins (1899) 1 Ch. 16=68 L.J.Ch. 57. In granting relief by the appointment of a Receiver in a case where the plaintiff establishes that he has a right to be paid out of a particular fund, the Court acts on the view that there is clear equity in favour of the plaintiff, entitling him to the order. But what equity is there in favour of the plaintiff, who does not suggest that there was any agreement between him and Srinagar Raj that he should be paid out of a particular fund or property The following passage from the judgment of the Lord Chancellor in Owen v. Homan (1853) 4 H.L.C. 997=10 E.R. 75=94 R.R. 516, may be usefully cited : "The plaintiffs here do not claim as specific appointees of any part of the defendant's separate estate. They are merely in the nature of general creditor seeking to obtain payment by a sort of equitable action of assumpsit or debt. In such a case it is a strong exercise of authority to deprive the defendant, on motion, of property of which the plaintiffs have no specific claim, in order that if they establish their claim as creditors there may be assets wherewith to satisfy them. I do not mean to say that such a course may not be taken, though I have not discovered any authority for it. Perhaps the anomalous nature of the right, where a plaintiff is claiming as a general creditor of a married woman, and is seeking payment out of her separate estate, and the inability of the Court to govern the proceedings in equity in such a case by rules strictly conformable to those which regulate an action at law, may warrant the interim interference by a Receiver. But a chance of doing a wrong to the defendant in such a case is certainly much greater, and much more apparent, than were a right against some specific fund or estate. "It is the almost universal rule", says Pomeroy in his Equity Jurisprudence, 4th Volume 1533), "that a creditor's bill whether to set aside a fraudulent transfer or to reach equitable assets will not lie on behalf of mere general creditors who have not prosecuted their claim to judgment nor, in any other manner, acquired a lien upon the debtor's property. The slowness and inadequacy of the legal remedies open to such creditors are not considerations that can more a Court of Equity in the absence of statutory authority, to intervene in their behalf with the instrumentality of a Receiver to preserve the debtor's property".

7. On the second question, the authorities are clear and leave no room for controversy. Whenever a Court appoints a Receiver, it ought to take care to protect the rights of persons other than the applicant; and the cases established that a prior incumbrancer desiring to take possession is entitled to have the Receiver obtained by a puisne incumbrancer and, therefore, by a simple contract creditor, discharged and a Receiver of his own substituted. It is sufficient to refer to Yorkshire Insurance Coy. v. Metropolitan Amalgamated Estates (1912) 2 Ch. 497=81 L.J.Ch. 745=107 L.T. 45.

8. The conclusions at which I have arrived are these; that the learned Subordinate Judge of Bhagalpur had no jurisdiction to appoint a Receiver at the instance of the plaintiff in Money Suit No. 69 of 1920; and that in any event he could have recalled his order when all the facts were brought to his notice by the appellant, clearly establishing that a fraud had been practised on him by the Srinagar Raj, and that his order was bound to prejudicially affect the appellant, who had a clear equity in his favour for the appointment of a Receiver.

9. The appeal from the order of the Subordinate Judge, Bhagalpur, seems to me to be incompetent. I would dismiss Miscellaneous Appeal No. 97 of 1920 without costs, but would allow the application, the subject matter of Civil Revision No. 127 of 1920, and discharge the order for the appointment of Babu Satyabrata Chatterji as the Receiver. The petitioner is entitled to his costs in both the Courts from the defendants in Money Suit No. 69 of 1920. Hearing fee in each Court, five gold mohurs. I would allow Miscellaneous Appeal No. 96 of 1920 and remand the matter to Subordinate Judge, Purnea, for disposal according to law. The appellant is entitled to his costs in this Court from the defendants. Hearing fee five gold mohurs. Costs incurred in the Court below will abide the result and will be disposed of by the Subordinate Judge.

10. L.C. Adami, J.

11. I agree.