Bhagwan Das Marwari And Another v. Manindra Chandra Nandi And Others Opposite Party.

1. The petitioner has a usufructuary mortgage of fourteen ghatwali villages which cams into force on the 14th April 1926. On the 3rd September 1926, a receiver was appointed of the ghatwali properties at the instance of the opposite party who holds a decree for money. The petitioner prayed to the Subordinate Judge that his villages should be exempted from the receivership, but his prayer was refused both by the Subordinate Judge and by the District Judge on appeal.

2. A question has been discussed as to whether the petitioner had actually received possession before the receiver took possession or not; but that question is really of no moment.

3. The law is thus stated in Keir on Receivers, 8th edition, p. 195:

4. If parsons with paramount rights who are act parties to the action, are actually in possession of those rights, the appointment of a receiver does not prejudice them in the enjoyment of those rights. But if they are not actually in possession, then, after a receiver has been appointed, they must come to the Court for leave to exercise those rights, in which case their application cannot be refused.

5. In Yorkshire Insurance Co. v. Metropolitam Amalgamated Estates Ltd.(1) Swinfen Eady, J., said:

It is clear, however, that, notwithstanding the order appointing Whitehill, (that is, the receiver for the second mortgagee), the first mortgagees were entitled to come in and displace him. It is true they could not do this vi et armis or without coming to the Court. But they had only to signify their desire of obtaining possession by an application to the Court and this application they could make by serving a notice of motion on which an order for possession would be made.

6. The petitioner is entitled to an order for possession of his mortgaged villages, and I order accordingly. He will also, get the costs of this application. Hearing-fee two gold mohurs.

7. Petition allowed.