Sarjoo Prosad C.J. - (1.)This appeal is by the judgment-debtor and is directed against an order dated 15-2-1958, passed by the Senior Civil Judge of Ajmer dismissing his objection.
(2.)It appears that a simple mortgage decree was obtained against the judgment-debtor appellant Onkarlal on the basis of three mortgage bonds. The preliminary decree was passed in the suit on the 22nd September, 1952. Later when the mortgage dues were not paid, the decree-holders applied for a final mortgage decree in June, 1954, which, after contest, was actually passed in their favour on 31st January, 1956. The decree-holders applied for execution of the decree in execution case No. 146 of 1956. The mortgaged property was proclaimed for sale but later the sale was stayed by an order of the Court in Civil Suit No. 723 of 1956. Meanwhile, it appears that in June, 1956, one Fateh Chand had obtained another mortgage decree against the judgment-debtor Onkar Lal. Rampal and others, the decree-holders in this case, then filed a suit for declaration that the decree obtained by Fateh Chand in Civil Suit No. 444 of 1956 from the Court of the Sub-Judge, First Class, Ajmer, was a fraudulent and collusive decree and could not affect the mortgage property as against the rights of the plaintiffs-decree-holders. It was in this suit that the stay order in question was passed.
(3.)As there was delay in the disposal of the suit the decree-holders applied for fresh execution of the decree in the present execution case No. 76 of 1958 by the appointment of a receiver. In their application the decree-holders submitted that while the decree in favour of the decree-holders was for over Rs. 40,000/ the value of the property was barely Rs. 25,000/-. It should be observed that the mortgage property in question is a house. It was further alleged that the house was in a dilapidated condition and had not been white-washed or repaired for the last 15 years and the mortgagor had neglected the same and the property was deteriorating from day to day. It was suggested that the judgment-debtor had no stake or interest left in the property and that he had allowed a collusive mortgage decree to be passed against him in favour of Fateh Chand. The decree-holders, therefore, prayed that a receiver should be appointed to take charge of the property and to look after it so that the usufruct may be available in the hands of the receiver for the liquidation of the mortgage debt; and the judgment-debtor may be prevented from realising any advance rent of the property or leasing out the property for long terms by taking advance payment to the great loss of the decree-holders. The judgment-debtor, who appears to be in occupation of a portion of the property, the other portions having been let out to tenants fetching a rent of about Rs. 80/- to 90/- p.m., objected to the mode of execution claimed by the decree-holders. He not only repudiated the allegations made by the decree- holders but also contended that under the law no such execution by appointment of a receiver was maintainable.
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