JUDGMENT Mootham, J. - This case raises two questions of importance, first whether this Court has power under Order 40 of the CPC to appoint a receiver of property the subject of a simple mortgage and, secondly, if it has that power, where the appointment should be made where the principal ground upon which it is sought is the non-payment of interest by the mortgagor. 2. The facts can be briefly stated. On the 3rd July, 1934, Babu Panchanan Benerji, who has since died and is represented by the Appellants, borrowed the sum of eight lacs of rupees from the Maharaja of Sonepur, and as security for the loan and for the interest payable thereon he executed a simple mortgage of property situate in Bengal and the United Provinces. It was agreed that the loan should bear interest at the rate of six per cent, per annum payable hail yearly for two years and thereafter at seven per cent, payable annually. At the time the loan was taken Babu Panchanan Benerji's property was under the management of the Court of Wards, and the deed of mortgage was accordingly executed by the Special Manager of the Court of Wards of Bengal. In 1938 Babu Panchanan Banerji died, and three years later the mortgaged properties were released from the management of the Court of Wards. Interest on the loan appears to have been paid until the year 1940, but thereafter it fell into arrears and on the 3rd September, 1941, the Maharaja of Sonepur instituted a suit in the Court of the Civil Judge of Benares for the sale of the mortgaged property. I he suit was contested by the Defendants, who not only contended that the Special Manager had no authority to execute a mortgage and that there was no legal necessity for the loan, but that no mortgage was in fact executed and indeed that no loan was ever taken. The learned Civil Judge rejected the various pleas in defence except one. He was of opinion that the Special Manager had no authority to mortgage the United Provinces property, and on the 28th May 1943 when he passed a preliminary mortgage decree for the full amount claimed he accordingly declared that the mortgaged property was limited to that situated in Bengal. From this decree both parties have appealed. 3. He was of opinion that the Special Manager had no authority to mortgage the United Provinces property, and on the 28th May 1943 when he passed a preliminary mortgage decree for the full amount claimed he accordingly declared that the mortgaged property was limited to that situated in Bengal. From this decree both parties have appealed. 3. In the year 1936 the question whether a Court was competent to appoint a receiver of a property the subject of a simple mortgage pending the decision of an appeal from a preliminary mortgage decree was considered by a Full Bench of this Court in Ram Sarup v. Anandi Lal1. The argument before the Court, and the answers given to the questions propounded, turned wholly upon the construction of Sub-rule (2) of Rule 1 of Order 40 of the CPC Code. That sub-rule then read as follows: (2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove. and the Full Bench was unanimously of opinion that the words '"any person" in the sub-rule included all persons whether parties to the suit or not. Taking this view Sir Shah Sulaiman C. J., answered the question referred to the Bench by saying My answer to the question referred to as, therefore, is that though there is no objection to the mere appointment of a receiver of any property, the Court cannot remove from the possession or custody of the property any person, whether a party to the suit or not, whom any party to the suit has not a present right so to remove. 4. Thom, J., as he then was, concurred in the answer given by the Chief Justice, and Rachhpal Singh J., was of opinion that no receiver could be appointed unless the party applying for the appointment could establish that be had a present right to remove the opposite-party from the possession and custody of the mortgaged property. Observations made by the learned Judges constituting the Bench as to the property of a receiver being appointed at the instance of a simple mortgagee were, in these circumstances, obiter. Observations made by the learned Judges constituting the Bench as to the property of a receiver being appointed at the instance of a simple mortgagee were, in these circumstances, obiter. Doubt having arisen as to whether the construction placed upon Sub-rule (2) in Ram Sarup's case 1936 A W R 565 (F.B) was not unduly narrow, a subsequent Full Bench of this Court, in Tulsha Devi v. Shah Chironju Lal 1942 A W R (H, C) 337, considered that the sub-rule should be so amended that no doubt should remain as to its meaning. Sub-rule (2) was accordingly amended on the 10th July, 1943, by the insertion after the word "person" of the words "not being a party to the suit" The effect of the amendment is clear: in a case in which no question arises as to the dispossession of a person not a party to a suit the Court has an unfettered discretion under Rule 1 to appoint a receiver whenever it appears to it to be just and convenient so to do. 5. The second question, whether it would be proper for this Court to appoint a receiver in the circumstances of the present case is more difficult. There is no allegation of waste; all that is said is that interest on the mortgage debt has been unpaid for several years and that the conduct of the present representatives of the original mortgagor has been such as to give rise to the reasonable apprehension that they will adopt every device which the law permits to delay the final determination of the mortgagee's claim. Sir Tej Bahadur Sapru on behalf of the mortgagee has argued that the appointment of a receiver is necessary to ensure that the mortgagee shall ultimately receive that to which he is entitled, and he has in particular drawn our attention to the case of Ram Kumar Lal v. Chartered Bank of India, Australia and China (1924) 41 C. L. J. 203 in which an appellate bench of the Calcutta High Court declined to interfere with an order of C. C. Ghosh, J. who had, at the instance of a mortgagee by deposit of title deeds, appointed a receiver upon the sole ground that a considerable sum due by way of interest was unpaid. Sir Tej has further pointed out that an equitable mortgagee in England is entitled to the appointment of a receiver as of course if the interest on the loan is in arrear, and he has argued that this Court should in this matter follow the English practice. 6. The course of authority in India is not uniform. The High Courts at Clacutta, Bombay, Madras and Lahore, and until 1939, the High Court at Rangoon have acted, upon tie view that the principles upon which a Court in England will appoint a receiver on the application of an equtiable mortgages should guide the Courts in India whan a similar application is made by a mortgagee on the basis of a simple mortgage or a mortgage by deposit of title deeds, (See Rameshwar Singh v. Chuni Lal Shaha (1920) 47 Cal. 418 , Damoder Moreshwar Phaake v. Rakhabai Damodar Ranade L. R. 1939 Bom 82, Paramasiwan Pillai v. A V.R. M. S. P. S. Ramasami Chettiar (1933) 56 Mad. 915 (F.B), Gobind Singh v. Punjab National Bank Ltd. 935 16 Lab. 366, Aga G. Ally Ramgaw Tezdi v. Balthayar and Son Ltd (1936) 14 Ran 292 , but this view has not been accepted by the Rangoon High Court See Nrisingha Charan Nandy Chowdhry Vs. Rajniti Prasad Singh and Others, AIR 1932 Patna 360 and Ma Hnin Yeik v. K. A. R.R, Chettyar Firm 1939 Ran 403 (F B ). 7. In India a Court derives its power to appointt a receiver from the provisions of Order 40 of the CPC Code, and from no other source; and it is, I think, the failure to bear this in mind which has led to the conflict of opinion on the question under consideration Order 40, Rule 1, is based on Sub-section (8) of S. 25 of the Judicature Act of 1873 (36 and 37 Vict. c. 66) since replaced by S. 4.) of the Judicature Act of 1925 (15 and 16 Geo. V. c. 49)-but the appointment of rece vers in England in the case of equitable mortgages and charges is not made in exercise of the Court's statutory powers but in exercise of the jurisdiction formerly vested in. the Court of Chancery and which since the passing of the Judicature Acts vests in the High Court of Justice. V. c. 49)-but the appointment of rece vers in England in the case of equitable mortgages and charges is not made in exercise of the Court's statutory powers but in exercise of the jurisdiction formerly vested in. the Court of Chancery and which since the passing of the Judicature Acts vests in the High Court of Justice. The appointment of a receiver at the instance of an equitable mortgagee was one of the oldest remedies of the Court of Chancery; it was made ex debito justitiae because of the absence or inadequacy of the mortgagee's remedy at common law. That remedy was originally and still is, in form, discretionary; but it had for so many years been the practice of the Court of Chancery to appoint a receiver at the instarce of an equitable mortgagee if the interest payable under the security was in arrear, or if the security itself was in danger, that it would perhaps not be wrong to say that the remedy has, as it were, crystallised into a right to the benefit of which the mortgagees now ordinarily entitled as of course . In Vacuum Oil Company Ltd v. Ellis' (1914) 1 K.B, 693 at 103 Buckley, L J. said. In the absence of exprsss contract between the mortgagor and second mortgagee of lands entitling the latter to take possession with the consequenti(sic) right to take the rents, the rights of the second mortgagee are as follows. He can, subject to the rights of the first mortgagee, take possession and enter into the receipt of the rents in either one of two ways: (a) in an action to enforce his security be can obtain an order appointing a receiver, or (b) under the conveyancing Act he can himself appoint a receiver. In the one case the obtains judicially and in the other contractually and by virtue of the statute a right to take the rents by the hand of a receiver. But his only remdey is the appointment of a receiver; he has no legal right to take possession to demand payment, to himself of the rents. If be serve's notice on the tenant requiring the tenant to pay the rent to him, the tenant may refuse payment, for he will get no discharge. The second mortgagee could not sue the tenant for the rent. If be serve's notice on the tenant requiring the tenant to pay the rent to him, the tenant may refuse payment, for he will get no discharge. The second mortgagee could not sue the tenant for the rent. He has nolegal right in the lard demised, and in In re Compton & Co Ltd,, Flayer v. Crompton & Co Ltd (1914) (sic) Ch.D. 34 at 967 Warrington J., said I think the right to the appointment of a receiver is one of the ordinary rights which accrue to a mortgagee, and especially to an equitable mortgagee who has no means of taking possession and whose security has become realizable as one of the steps in such realization, 8. In India a simple mortgage is a creation of statute; under S 58 (b) of the Transfer of Property Act the mortgagor binds himself personally to pay the mortgage-mony, and be agrees that in the event of his failing to pay in accordance with his contract the mortgagee shall have the right to cause the mortgaged property to sold. The mortgagor retains possession be of the mortgaged property, and in default of payment the right which accrues to the mortgagee is "a right, not to possession but to sale, which he must work out in execution procedings "Sri Raja Papamma Rao v. Sri Vira Pratapa H. V. Ramachandra Razu (1898) 23 I. A. 32. Although in a fit case the Court has an undoubted right to appoint a receiver at the instance of a simple mortgagee, no right to such an appointment is given to the mortgagee by statute nor, where the only ground upon which such appointment is sought is the failure of the mortgagor to pay interest on the mortgage money, is there in my opinion any settled practice in India outside Bengal, and certainly not in this province, that a Receiver will be appeared, I am not aware of any reported case in which a receiver has been appointed at the instance of a mortgagee (where the transaction was not an English mortgage) upon the sole ground that insterest payments were in arrear, other than Ram Kumar Lal's case to which reference has already been made. And in that case there was no discussion of the question whether the appointment was "just and convenient", the ground upon which the order was made being stated by C. C. Ghosh, J., at p. 205, in these words: In these circumstances, the question arises whether the Plaintiff ought not to be granted the ordinary relief in suits on mortgage namely whether he ought not to be allowed a receiver to take charge of the mortgaged premises. The practice in suits on mortgage, where the interest is in arrears, is to order the appointment of a receiver as a matter of course. This has been the practice which has been followed in this Court by a long succession of Judges who have tat on the original side. Therefore, the mortgagee Plaintiff would prima facie be entitled to a receiver. 9. There is a passage at p. 930 in the judgment of Ramesami J., in M. Paramaswan Pillai v. A. V. R. M. S. P. S. Ramasami Chettiar(6). Which suggests that a receiver had been appointed in that case - a suit on a simple mortgage on the ground that interest was in arrear, but from the summary of the facts at p. 919. of the report it appears that the real ground was the insufficiency of the security to discharge the decree. In Damodar Moreshwar's case() Beaumont, C. J., expressly reserved his opinion as to whether interest being in arrear by itself wculd have been sufficient to justify the appointment of a receiver. 10. In my opinion the decisions of the Courts of England as regards the appointment of a receiver at the instance of an equitable mortgagee must be treated with reserve. For, in the first place, such decisions are based on equitable practice of ancient origin and, in the second place, the incidents of a simple morrtgage are not the same as those which attach to an equitable mortgage it England. For, in the first place, such decisions are based on equitable practice of ancient origin and, in the second place, the incidents of a simple morrtgage are not the same as those which attach to an equitable mortgage it England. It may perhaps be doubted whether the view of Courtney Terrell, C. J., in Nrisingha Chanan v. Rajniti(9), that there is the same difference between a simple mortgagee and an equitable mortgagee as between the former and a legal mortgagee under Indian law does go too far, but it is clear that although neither the equitable mortgagee in England nor the simple mortgagee in India possessed as part of the interest transferred to him the right to possession; an equitable mortgage operated as an executor assurance which, so far as equitable rights and remedies were concerned, was equivalent to an actual assurance: Carter v. Wake 9 Ch.D. 625. A legal mortgagee was able to ensure that the rents and profits of the mortgaged property were applied in keeping down the interest on the mortgage debt by entering into possession of the mortgaged property; and it was, because an enquitable mortgage carried with it, as far as possible, the remedies incident to a legal mortgage that a Court of equity, being unable to put the equitable mortgagee into possession, would appoint a receiver if the interest were in arrear. 11. In Rama Prasad v. Bishambhar Nath16, the only other decision of this Court to which reference need be made, a simple mortgagee had, after obtaining a preliminary mortgage decree, secured an order from the trirl Court directing the tenants of the mortgaged property to pay the sum due from them by way of rent into Court. An appeal to this Court was allowed on the ground that until the mortgaged property was brought to sale the usufruct belonged to the mortgagor or his transferee. Both learned Judges (Bennet and Mukerji JJ) expressed their dissents from the view taken in M. Paramasivan Pillai's(6) case as to the applicability of the English decisions as to the circumstances in which a receiver could properly be appointed at the instance of an equitable mortgagee. 12. Both learned Judges (Bennet and Mukerji JJ) expressed their dissents from the view taken in M. Paramasivan Pillai's(6) case as to the applicability of the English decisions as to the circumstances in which a receiver could properly be appointed at the instance of an equitable mortgagee. 12. As there is no practice in this province, such as appears to exist in Bengal, entitling a simple mortgagee to obtain the appointment of a receiver of the mortgaged property upon proof that interest is in arrear, the question whether such appointment is ''just and convenint" must be determined on general principles and without reference, I think, to the English authorities save in so far as they lay down principles of general application. 13. The general ground upon which the Court appoints a receiver is the protection of property for the benefit of the persons who have an interest in it. In the case of a simple mortgage the property in which the mortgagee has an interest is limited to that which he can cause to be sold in the event of the mortgagor failing to pay in accordance with his contract; in the absence of specific provision to that effect the rents and profits of the property belong to the mortgagor and do not form part of the security for the repayment either of the mortgage debt or of the interest thereon. It appears to me, therefore, that prima facie the fact that interest is in arrear will not alone be enough to render the appointment of a receiver of the mortgaged property or of the rents and profits thereof either just or convenient. It appears to me, therefore, that prima facie the fact that interest is in arrear will not alone be enough to render the appointment of a receiver of the mortgaged property or of the rents and profits thereof either just or convenient. And I am unable to see that the additional fact that the mortgagor's conduct may have been such as to warrant the conclusion that his object is merely to delay the final determination of the suit makes any difference, unless the Court is satisfied that the effect of such conduct will be not merely to postpone but to imperil the realization by the mortgagee of the amount secured by the mortgage The question of what is "just and convenient" must further I think, be considered with reference to the contractual relationship of the parties The right of this mortgagee is to bring the mortgaged property to sale; he has no right to take possession of the mortgaged property nor to require the mortgagor to utilize the rents and profits of that property in payment of interest on the mortgage debt. The appointment of a receiver in such circumstances to take possession of rents and profits which do not form part of the security in order that such rents and profits may ultimately be made over to the mortgagee, confers upon the latter a benefit for which no provision is made in the contract and which in my view the non-payment of interest, considered by itself, cannot jutify. 14. The question whether the insufficiency of the mortgaged property to satisfy the mortgage debt, taken alone or in conjunction with the mortgagor's failure to pay interest is a ground sufficient to justify the appointment of a receiver is not now before us, and I express no opinion upon the point. 15. For these reasons this application must in my opinion be rejected with costs. Mathur, J. 16. I entirely agree.