JUDGMENT

Page, C J - This appeal must be allowed.

2. The plaintiff in a mortgage suit obtained a decree against the defendant. Pending the determination of the suit a receiver was appointed by the Court on 18th May 1931 "to take possession of the suit property" with the exception of a small strip of land. Now, what is the nature of the possession of a receiver so appointed?

The nature of the office of a receiver is simply this: that he is an impartial person appointed by the Court to collect and receive, pending the proceedings, the rents, issues and profits of land or personal estate or other things in question which it does not seem reasonable to the Court that either party should collect or receive. The object sought by the appointment of a receiver is the safeguarding of property for the benefit of those entitled to it. His possession is on behalf and for the benefit of all the parties to the suit in which he is appointed, and is the possession of all the said parties according to their titles. The property in his hands is in custodia legis for the person who can make a title to it. The title of the real owner is in no way affected either in theory or on principle by his appointment. He collects and receives the rents, isauos and profits not upon his own title but upon the title of some persons parties to the action:

per Mukerji, J., in Eastern Mortgage & Agency Co., Ltd. v. Muhammad Fuzlul Karim 1926 Cal. 395 and Maung Ohm Tin v. P.R.M.P.S.R.M. Chettyar Firm 1929 Rang. 311.

3. The question in the present ease is with respect to who is entitled to the rents and profits which were collected by the receiver. At one time the Court felt some diffidence in appointing a receiver at all in a mortgage suit, but both in England and in India the propriety of appointing a receiver in a suitable case cannot now be challenged. Jaikissondas Gangadas v. Zenabai (1890) 14 Bom. 431 and Pratchett v. Drew (1924) 1 Ch. 280. In the petition of the Collector of Rangoon the petitioner states that he is desirous of having an order passed directing the Official Receiver to pay to your petitioner the said sums (i.e., sums due to Government) as a first charge on such of the rents collected by him as may be payable to the defendant.

4. The question therefore is:

Are the sums in the hands of the receiver representing the rents and profits of the land which was subject to the mortgage payable to the defendant, i.e., the mortgagor?

5. In my opinion they are not. Under the terms of the mortgage in suit which is dated 3rd January 1928 it is inter alia provided that in pursuance of the said agreement and in consideration of the sum of rupees thirty thousand (Rs. 30,000) paid by the mortgagees to the mortgagors on or before the execution of these presents (the receipt whereof the mortgagors hereby acknowledge) the mortgagors hereby convey unto the mortgagees all that piece or parcel of garden land situate in Kwin No. 78, Thayetken Circle, Rangoon Town District, and known as Holding No. 1 of 1926-1927 and measuring acres 10'15 or thereabouts (formerly known as Holding No. 11 of 1916-1917 in Kyatshazun Kwin Mingaladon Circle, Insein Township) together with the buildings and structures thereon and bounded on the North by Cart Track, on the East by Prome Road; on the South by land of U Nun Han and others and Ywathet Village; and on the West by Insein Boad, and all appurtenances to the said premises belonging and all the estate, right, title, interest, property, claim and demand whatsoever of the mortgagors into and upon the said premises to hold the said premises unto the mortgagees subject to the proviso for redemption hereinafter contained.

6. This mortgage is in the form of an English mortgage and in my opinion under the terms thereof the rents and profits arising out of the land subject to the mortgage form part of the property subject to the mortgage upon which repayment of the mortgage debt is secured as between the mortgagor and the mortgagee. In my opinion under