1989 Supreme(MP) 626

IN THE HIGH COURT OF MADHYA PRADESH
R.K. Varma, J.
Ramanand - Appellant
Vs.
Smt. Shyambai - Respondent
Misc. A. No. 170 of 1988 (I)
Decided On : 18-07-1989

Headnote:Civil Procedure Code, 1908 – O.40, R.1 and O.38, R.5 – mortgage prima facie subsisting – mortgagee given possession – receiver can be appointed to collect the rent.

        Short Note

       The plaintiff has filed the instant suit on the allegation that the defendant – appellant had borrowed Rs. 40,000/ – from the plaintiff on 8 – 1 – 1981 and executed a pro – note in favour of the plaintiff for a sum of Rs. 30,000/ – and a registered deed of mortgage of his house in favour of the plaintiff for the balance of Rs. 10,000/ – . According to the mortgage deed, the plaintiff was given possession of the mortgaged house and he was authorised to collect rent from the tenants. The defendant – mortgagor had also executed a rent – note in respect of the two vacant rooms which if sold, the plaintiff would not be able to recover the amount of decree which may ultimately be passed against the appellant – defendant. It is also alleged that the appellant – defendant has no means apart from the mortgaged house to repay the amount due to the plaintiff and that he has not paid any amount to the plaintiff for the last five years. On these facts, the learned trial Court has allowed the plaintiff's application dated 6 – 12 – 1986 filed under order 38, rule 5 and order 40, rule 1 read with section 151 of the Code of Civil Procedure and has ordered appointment of a receiver in respect of the mortgaged house by the impugned order.

       2. Held: The learned trial Court, in the fact of the aforesaid facts, has, in my opinion, rightly found it just and convenient to entrust the management of the mortgaged house including collection of rent from the tenants and keeping accounts in respect thereof to protect the plaintiff's interest in the circumstances. The impugned order of appointment of receiver is discretionary and the learned trial Court cannot be said to have exercised that discretion in an arbitrary manner so as to call for an interference in this appeal. Learned counsel for the respondent – plaintiff has placed reliance on a decision in Bhawoniram Raghunathji and another v. Mahomed Hussain Musekhan and others, AIR 1955 MB 199 and Narayandas v. Shri Sakal Dasha Neema, 1982 MPWN 161 in support of his submission.

       3. Having heard learned counsel and having considered the impugned order, pleadings of parties and the relevant material on record, I have come to the conclusion that this appeal has no merit and as such is liable to be dismissed.

       4. The expression – 'just and convenient' in the aforesaid rule has connotation of wide import. The facts obtaining in the instant case prima facie show that the mortgage subsists and that it is inequitable to permit the appellant – defendant to enjoy the usufruct which was intended to be appropriated by the mortgagee plaintiff as per the terms of the mortgage – deed which directed delivery of possession and collection of rent by the mortgagee. The plaintiff's apprehension of transfer of the mortgaged house by the appellant – defendant has not been found to be unfounded by the learned trial Court. In these circumstances, if the learned trial Court has felt it just and convenient to order appointment of a receiver of the mortgaged house, it cannot be said that the trial Court has not exercised discretion judicially so as to warrant interference in this appeal. AIR 1955 MB 199 and 1982 MPWN 161 referred to. Appeal dismissed.