JUDGMENT

Din Mohammad, J. - This appeal has arisen out of certain execution proceedings. The decree-holder respondents applied to the executing Court for the appointment of a receiver to collect the gate money of a cinema hall owned by the judgment-debtor. The executing Court allowed this application but with the express reservation that the receiver will not be entitled to manage the show but would merely keep an account of the income and expenditure and deposit the amount daily in the civil Court account. Against this order the judgment-debtor has appealed. Counsel for the appellant contends that such future earnings are not covered by Order 40, Rule 1, Civil P.C.,. and that therefore no receiver can be appointed to collect them. In support of his contention he relies on Cadogan v. Lyric Theatre (1894) 3 Ch D 338, Hemchandra Nath v. Prokash Chandra 1932 Cal 189, Dharendra Krishna v. Surendra Krishna 1930 Cal 610 and Pirthi Chand Lal v. Kalikanand Singh 1922 Pat 318. In Cadogan v. Lyric Theatre (1894) 3 Ch D 338.

A judgment for debt was recovered against a theatre company. The theatre was subject to a mortgage. The company had no land except the theatre, of which they were lessees and were in occupation, and they were using it for the ordinary purposes of a theatre.

2. It was held that a receiver could not be appointed at the instance of the judgment-creditor to receive by way of equitable execution the moneys paid by the public for entrance to the theatre. It was however added that a receiver ought to be appointed of the rents and profits of the company's lands by way of equitable execution, without prejudice to the right of any prior incumbrancers, and that the company should be ordered to deliver up possession of the lands to him. In the present case also the hall is under a mortgage with possession and the judgment-debtor is said to have taken it on lease from the mortgagees. Counsel for the appellant contends that that case is on all fours with his and that the gate money received by the judgment-debtor is consequently immune from the operation of Order 40, Rule 1. I, however, do not agree with him there.

3. Under the provisions of the Civil Procedure Code, a receiver can now be appointed before or after the decree of any property and all such powers as to management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits as the owner himself has, can be conferred upon him. It is no doubt true that in his judgment, Lord Herschell, L.C., has observed that money paid for entrance to a theatre cannot properly be described as rent or profits of the premises, but here, as stated above, the receiver is not entitled to receive money at the doors but is merely entitled to receive the daily earnings after they have been collected. To my mind, the money so earned would clearly come within the definition of property as used in Order 40, Rule 1. As soon as the gate money is received and collected for the judgment-debtor, it becomes his property and I fail to see how it cannot be utilized for the benefit of his judgment-creditors either by attachment or through the appointment of a receiver.

4. In Hemchandra Nath v. Prokash Chandra 1932 Cal 189, a Division Bench of the Calcutta High Court held that a simple contract creditor, who has no specified charge or no right to be paid out of a specified fund, could not in general ask for the appointment of a receiver. This evidently means that circumstances may exist when such an application can be made and in my view in the present case such special circumstances do exist. In Dharendra Krishna v. Surendra Krishna 1930 Cal 610, which is an earlier judgment of the same High Court, it was laid down by a Division Bench that the words "just and convenient" did not mean that the Court was to appoint a receiver simply because the Court thought it convenient, but they meant that the Court should mak