MT. SUKHARANIABAI Vs. LAXMIKANTRAO GANATRAO AND OTHERS

JUDGEMENT

(1.) THIS is an appeal against order appointing a receiver in execution proceedings following on a final decree for sale on a simple mortgage. The decree-holder has not been able to proceed with the sale because the judgment-debtors have in one way and another kept the rolling and are likely to keep it rolling for the time more, They have, for instance, applied for instalments and have taken the matter upto this Court and have obtained stay of execution in the meanwhile. Also the matter has to go before the Collector and that will take time. All that is not disputed; nor are the findings of the lower Court on the merits. The learned Judge finds that the property has been allowed to deteriorate in value and that this process is likely to continue unless arrested by the appointment of a receiver; also that the judgment-debtors are not paying the land revenue and that all this is deliberate so as to put the decree-holder to as much loss as possible. There can be no question that on the findings of the lower Court it is not only just and reasonable but desirable that a receiver should be appointed. But it is urged that the Courts have no power to appoint a receiver at any stage of a suit on a simple mortgage. The decree-holder's only right is to bring the property to sale and until it is sold he has the right to remain in possession.

(2.) THE lower Court holds that it has power to make the appointment because under the mortgage the rents and profits have been mortgaged as well as the land, Had that been so, we would have had no difficulty This question was considered at length by a Division Bench of this Court to which, one of us (Stone C.J.) was a party Kanhiyalal v. Seth Misrilal Misc. Appeal No. 27 of 1934 and it was held that in such a case a receiver can be appointed even in the case of a simple mortgage. But counsel on both sides admit that the learned Judge of the lower Court has made a mistake of fact. There is no such clause in the mortgage. The learned Judge was in no way to blame because he was misled by a wrong statement to that effect in an affidavit filed before him by or on behalf of the decree-holder, which wrong statement the judgment-debtor does not appear to have made any attempt to correct. However, as it is now admitted that there is no such clause in the deed, we must debate the question whether the Courts have power to appoint a receiver in a suit on a simple mortgage. That matter was left open in the Division Bench case cited above. Order 40, Rule 1, Civil P.C., which deals with the appointment of receivers, after setting out that a receiver may be appointed "where it appears to the Court to be just and convenient," states in Sub-rule (2):

(3.) BEAUMONT C.J. has pointed out in Damodar Moreshwar v. Radhabai Damodar A.I.R. 1939 Bom. 54 that the mortgagor has a right to remove himself from the possession and custody of the property, and as he is a party to the suit, Sub-rule (2) does not Operate to prevent his removal. If it is necessary to give to the words "any person" the strict grammatical meaning which Sulaiman C.J. says at p. 966 that they must be given, (and we agree that that is the only proper way to interpret a statute), then it is no less necessary to interpret the words "any party," which follow with the same grammatical strictness. If a mortgagor is a party to the suit, as he must always be, then he comes within the purview of the words "any party," and he is certainly "any person" as Sulaiman C.J. holds, therefore if he has a right to remove himself, (which we think is beyond doubt), Sub-rule (2) is not attracted when he is the person sought to be removed even when his opponent seeks to remove him. It is to be observed that the words are not "any person whom any party to the suit (other than the party sought to be removed) has not a present right so to remove." We think it would be as unjustifiable to add the words in italics, or their equivalent, to the expression "any party" as it would be to add the words "other than a party to the suit" to the expression "any person."