JUDGMENT

Mosely, J - I am dealing with two appeals here, Civil Misc. Appeal No. 47 of 1934 by J.N. Kundu, and Civil Misc. Appeal No. 78 of 1934, by N.N. Kundu and U.N. Kundu, against the orders of the District Judge in Civil Misc. No. 9 of 1932, where he dismissed the objections of these three people to the taking possession by the receiver of property,--a saw mill--over which the respondent, Babu Nand Kishore, had obtained a mortgage decree. There are also four other appeals or applications, detailed below, the result of which depends on these two appeals.

2. In Civil Eegular Suit No. 3 of 1932 of the District Court, Nand Kishore sued B.M. Kundu, the son and legal representative of the deceased A.C. Kundu, and the respondent, P.S.A.L. Chettyar Firm, for Rs. 85,000, principal, and nearly Rs. 3,000, interest, due on a sub-mortgage. A. C. Kundu, deceased, (who died on 27th September 1931), executed a promissory note, by his agents Harendralal Kundu and G.K. Kundu, in favour of the Chettyar Firm on 31st May 1930, and they deposited by way of mortgage security the title-deeds, of the saw-mill and the plant now in question, which were admittedly in A.C. Kundu's name. The Chettyar Firm made a sub-mortgage by deposit of the title-deeds in favour of the plaintiff, Nand Kishore at a small rate of interest. Later on in the case the executors of A.C. Kundu's will which he had made in 1923, G.K. Kundu and S.N. Kundu, were added as defendants. After the preliminary mortgage decree a receiver was appointed, and when he went to take possession of the mill on 2nd March 1933, after an appeal against the preliminary mortgage decree had been dismissed in this Court, his possession was resisted by the present appellants. After that a final decree was passed, and in June 1933, pending the inquiry into the question whether the receiver should take possession of the mill, or only of what the appellants alleged to be his interest in it, a one-fifth share,--the appellants got an order directing that they might remain in possession on furnishing security. Civil Revision No. 167 of 1933, is an application by six Kundus who claim to have an interest in the mill for revision of that order as to security, and Civil Revision No. 190 of 1933, is a counter application of Nand Kishore that the District Judge should not have allowed such conditional possession. Security was not furnished, and the District Court ordered the receiver to take possession, and against that order the Kundus have filed Civil Revision No. 252 of 1933, and also Misc. Application No. 134 of 1933. The six Kundus who claim an interest are: three brothers, Harendralal Kundu, S.N. Kundu and Hiralal Kundu, who claim a one-fifth share between them: and J.N. Kundu, N.N. Kundu and U.N. Kundu (who is the father of G.K. Kundu) who claim a one-fifth share each.

3. The learned District Judge held a preliminary inquiry and went carefully and in detail into the history of the case and the documentary evidence. The only oral evidence which was alluded to in his judgment or in the argument before us was that of Harendralal Kundu, the tenth witness for the applicants, who made a great many admissions, which the learned Judge considered to have disproved the appellant's case. The Judge held that the Kundus, who come from Bengal, were a joint family, as alleged until about 1923 or a date a little subsequent, when they separated. He held that the mill mortgaged since that date by Harendralal Kundu and G.K. Kundu as agents of A.C. Kundu was the sole property of A.C. Kundu. It is argued that the claimants had a prima facie and bona fide claim to remain in possession, and that the Judge should not have held that the receiver had the present power to remove them from possession (Order 40, Rule 1, Sub-rule 2), and should not have held the inquiry, and Chittammal v. Ponnuswami Naicker 1926 Mad. 363 is quoted in this connexion. But the inquiry has been held and a decision come to, and I see no reason to suppose that