JUDGEMENT : CHATURVEDI, J. This is an appeal from an order made on 14-1-53 by the Additional District Judge, Ujjain, appointing a receiver of the mortgaged property. It appears that the respondents filed O.S. No.20 of 1950 in the Court below on the basis of four mortgage-deeds and prayed for the sale of mortgaged property. In this suit an application was made for the appointment of a receiver which has been granted. Against this order this appeal has been filed, and, Mr. Dubey, on behalf of the appellants, urges that the learned court below has not made an inquiry whether the property was in jeopardy or not and passed an order appointing a receiver without coming to the conclusion whether it was just and convenient to do so. 2. The suit in which this order has been passed was instituted by the respondents for recovery of a sum of Rs.18,960/4/-, out of which Rs.15,000/- is the mortgage-money and a sum of Rs.3,960/4/- is claimed as arrears of rent. It appears that the possession of the four houses mortgaged was given by the appellants who executed a rent-note in favour of the mortgagees and agreed to pay Rs.108/8/- per month as rent of the houses. It was alleged that the mortgagors did neither pay the mortgage-money nor the rent, and, therefore after filing this suit for the sale of the mortgaged property, the respondents made an application for the appointment of a receiver. We have not been able to understand as to why in this case the appointment of the receiver was unjustifiable. The only point advanced by Mr. Dubey challenging the appointment of the receiver is that the appellants were not given an opportunity to lead the evidence for showing that even from one house the whole mortgage money can be realised. In our opinion this argument is devoid of substance. In this case an affidavit had been made on behalf of the respondents on 4-11-1952 and there was ample opportunity for the appellants to challenge it by means of counter-affidavit, but no such counter-affidavit was filed. The question whether the affidavit was or was not properly made was not taken in the Court below and it is futile to take this plea here. 3. Mr. Dubey then contended that the mortgage-deeds were not signed by the appellant No.2 Chandra Bhaga Bai, who is the wife of appellant No.1. The question whether the affidavit was or was not properly made was not taken in the Court below and it is futile to take this plea here. 3. Mr. Dubey then contended that the mortgage-deeds were not signed by the appellant No.2 Chandra Bhaga Bai, who is the wife of appellant No.1. This point also does not appear to have been taken in the Court below and so it is no use discussing it here. Another point made out by Mr. Dubey was that appellant No.2 cannot be ousted from the mortgaged property which belongs to her and for this contention Mr. Dubey places reliance on Cl. (2) of Rule 1 of O.40, Civil P.C., which runs as follows: "Nothing in thus rule shall authorise 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." Mr. Dubey contends that due to this Rule appellant No.2 cannot be removed from the houses which belong to her. In our opinion O.40 R.1(2) is an enactment for the benefit only of the third parties and means that the wide words of sub-rule 1 are not to be so construed as to justify the Court in removing from possession or custody of property a third party who has got a good title to such possession or custody. A party to the suit cannot take advantage of this clause. In this view we respectfully agree with the opinion expressed in - 'Damodar v. Radha Bai', AIR 1939 Bom 54 (A) and - 'Vishwanath v. Kanak Mal', AIR 1952 Madh. B. 136 (B). 4. Under the present Code the Court can appoint a receiver if it appears to it to be "just and convenient" to do so. The test therefore is whether it is just and as well as convenient in this case to appoint a receiver and in deciding this matter due weight must be given to all relevant considerations, and, the question of appointment of a receiver is to be determined on the facts of each particular case. Upon the question whether in this particular case the learned Additional District Judge was right in appointing a receiver, we think there can be very little doubt. Upon the question whether in this particular case the learned Additional District Judge was right in appointing a receiver, we think there can be very little doubt. At the time the application was made by the respondents for appointing a receiver, not only was the interest in arrear but the rent was also in arrear and no repairs had been made to the houses. The debt had accumulated to Rs.15,000/-and every month a sum of Rs.108/8/- was being added to it. The appellants were getting rents from their sub-tenants alright but did not care to pay them to the mortgagees. Under these circumstances it was just and equitable to appoint a receiver. When the possession had been given to the mortgagees the question of convenience of the mortgagors ordinarily does not arise. These circumstances, in our opinion, are sufficient to show that the discretion exercised by the trial Court was neither arbitrary nor capricious. We, therefore, dismiss this appeal with costs. 5. SHINDE, C. J.: I agree. Appeal dismissed.