ORDER

1. This is an application of Lala Ram Swarup and others in which the applicant prays the Court to appoint a receiver of certain mortgaged properties.

2. On 30th October 1922 a mortgage-deed was executed by one Ganga Ram who was the manager of a joint Hindu family and one Piare Lal in favour of the applicant's father. The sum advanced to the mortgagor was Rs. 1,05,000. This sum was advanced at the rate of 9 annas per mensem compoundable every six months. The prescribed term of the mortgage was three years, that is the money was repayable to the mortgagee on 30th October 1925. The money was not repaid in 1925 and the payment of interest appears to have been very irregular. In 1933 the plaintiffs filed a suit in which they claimed Rs. 1,49,264 plus interest. On 8th September 1934 a preliminary decree was passed in favour of the plaintiffs for a sum of Rs. 1,72,527. Against this decree the defendants to the suit have preferred a first appeal in this Court. The applicants have since obtained a final decree in their favour for the amount above mentioned. The applicants pray that in the special circumstances of this case a receiver be appointed to take charge of the mortgaged property pending the result of the appeal against the decree on the basis of the mortgage-deed.

3. It appears that included in the mortgaged property were certain stone quarries and it is alleged by the applicants that since the institution of the suit upon the basis of the mortgage the defendants have been mining these quarries at an abnormal rate and that as a result the value of the mortgaged property is depreciating. The defendants have opposed this application and they themselves filed an application which is before us in which they pray the Court that pending the result of their appeal the execution of the plaintiffs' decree should be stayed.

4. The defendants contend that this Court has no power to appoint a receiver in mortgage suit even after a decree has been passed in favour of the plaintiffs. This raises a somewhat difficult point of law which has been considered on several occasions by different Benches of this Court and of the other High Courts in India. Briefly the argument for the applicants is that u/s 51, Civil P.C., the decree-holder in a mortgage suit is entitled to an order from the Court directing that his decree be executed by the appointment of a receiver.

5. The defendant's reply is that under the provisions of Order 40, Rule 1, Sub-rule (2), Civil P.C., the Court is not empowered to appoint a receiver in circumstances where the mortgagor cannot be removed by the mortgagee from the mortgaged property. It was contended that the only right which the mortgagee has under his decree is the right to sell the mortgaged property in accordance with the provisions of the Civil Procedure Code. Until the mortgaged property has been sold in execution of the decree it was urged, the mortgagors could not be removed from the mortgaged property. In other words in the suit in which this application is made there is no right in the mortgagee to remove the mortgagor. In these circumstances it was contended that the application for the appointment of a receiver should be dismissed. Learned Counsel for the applicants has referred in support of his application to the decision in Mohammad Ishaq v. Om Parkash 1933 All 227. In that case it was held that it was open to the Court to say that although the property mortgaged was not to be sold and execution by that method would not be permitted, execution would be permitted by the appointment of a receiver. This decision carries the applicants the whole way and if this decision stood alone the applicants would have been in a position to contend that the law as laid down by almost every High Court in India was to the effect that Section 51 conferred upon the Court a right to appoint a receiver in execution of a mortgage decree. Learned Counsel for the applicants referred also to the cases reported in Paramasivan Pill