Korlapalli Bandachar and Another vs Firm of Sathraji Dongerchand

K.S. Menon, J.—The only question for decision in this case is whether the Receiver appointed by the Court in execution of the decree for

sale on a mortgage was entitled to sell the sugarcane crops raised by lessees of the mortgagor, under a lease given after the final decree. It is not

denied that the mortgage-deed included a covenant mortgaging future crops also and that the decree gave a charge on the future crops. The

lessees were admittedly aware of the suit to enforce the mortgage. The lease was taken only on 23rd February, 1931, while the final decree in the

suit had been passed on 27th January, 1930. Generally a mortgagor may be entitled in the ordinary course of enjoyment to lease the mortgaged

properties for a year in spite of a suit for sale pending on a decree for sale having been passed, provided it does not imperil or materially diminish

the security. It may be that the crop raised by such a lessee may in some cases be immune from being proceeded against hi execution of the

decree. But in this case the mortgage comprised not only the land, but also future crops and the decree declared a charge on such future crops.

Any person who in such circumstances takes a lease of the property after the decree must be deemed to have taken it subject to the rights of the

mortgagee decree-holder to proceed against such crops as he might raise, much more so a person who was fully aware of the suit. As future crops

formed part of the subject-matter of the suit, any transfer of such crops or the right to raise such crops, during the litigation would be affected by

the principle embodied in Section 52 of the Transfer of Property Act. Section 65-A of that Act does not apply to this case, as the mortgage in

question was executed long before the amending Act XX of 1929 was passed; and even if it applied it will still be a question whether the lease will

not come within Section 52 of the Act. However it is not necessary here to discuss the question. The lower appellate Court was right in holding

that the right of the lessees was subject to the right of the decree-holders to proceed against the crops in question and that the receiver was entitled

to sell the said crops.

This appeal therefore fails and is dismissed with costs.

(Leave to appeal, applied for, is refused.)