The main legal point established in the judgment is that the mortgage by the receiver was binding on the plaintiffs' estate, except for the stipulation for compound interest, which was not binding. The mortgage decree was also deemed not to be binding on the plaintiffs and did not affect their right of redemption.

JUDGMENT

Pal, J. - These two appeals arise out of the same suit. The Appeal No. 1192 of 1938 is by the plaintiffs and the other one is by defendant 1. The suit is for a declaration that a certain mortgage by an alleged receiver and the decree obtained in enforcement of that mortgage against that receiver are not binding on the parties. The relevant facts giving rise to this litigation are the following : Plaintiff 1, Annapurna Dasi, instituted suit in 1916 which has been characterised as an administration suit by the Courts below but which the plaintiffs-appellants characterise as a partition suit. This was title Suit No. 10 of 1916. In this suit the present plaintiff 1, Annapurna Dassi, was the sole plaintiff and plaintiffs 2, 3, 4 and 5 were defendants 1, 2, 3 and 4 respectively. In this suit defendant 2 of the present suit was appointed receiver on 14th July 1917 under Order 40, Rule 1, Civil P.C. That suit was ultimately referred to arbitration on 17th July 1917. The arbitrator based his award on the consent of the parties and pronounced the Same on 30th November 1917. According to this award the receiver was to be discharged and one Mr. Gunendra Chandra Ghose, a common relation of the parties, was appointed common manager of the estates. On 14th December 1917, the Court accepted this award and decreed the suit in terms of the same. The portion of the award relevant for our present purposes and relating to the discharge of the receiver ran as follows:

I also direct with like consent as aforesaid that the present receiver appointed by the Court be discharged from further acting as such after making suitable provision for immediate payment of Government revenue and superior landlord's rent and other pressing debts of the estate and make over all cash balances, books, documents appertaining to the estate to the common manager and file his accounts in usual course.

2. In order to see the real nature of the dispute involved in that suit and the manner in which that dispute was settled a portion of the award may be quoted here. The arbitrator stated in his award:

All the parties are related to me. They are inexperienced and uneducated and are physically and intellectually incapable to look after and manage or take intelligent interest of their respective right, title and interest. The defendants are sons of Upendra Nath Bose the well-known zamindar of Panisheshala, who died leaving a will. They lost their father at a tender age and were then infants. After attaining majority defendant 1, Gobordhan Behari Bose took up the management, he is a self-sufficient youth who dressed up his little, with the attitude of much. His management as executor of the last will of his father brought about disastrous results followed by sale of valuable landed properties and limitation of several joint debts due to the estate. I, therefore, declare with the consent of all parties that the said defendant Gobordhan Behari Bose be and he is hereby discharged from further acting as executor and that he is hereby directed to render a true and faithful account of his dealings with the estate of his father in the plaint in this suit mentioned. For the benefit of all parties concerned and with such like consent as aforesaid I do hereby declare that Gunendra Chandra Ghose a near relation of the parties of No. 142, Baranashi Ghosh's Street, Calcutta, be and he is hereby appointed with the consent of all parties as the common manager of the estate and effects left by the said.Upendra Nath Bose to act as such without remuneration with the help and co-operation of all parties especially of defendant 1 Gobordhan Behari Bose for the purpose of looking after and managing the estate and especially for realizing outstanding assets and payment of all just and subsisting debts.... I find, declare, and award with like consent as aforesaid that the plaintiff as the sole heiress of her deceased son Sailaraj Bose who died intestate and unmarried after the death of his father,