DHIRENDRA NATH SEN Vs. SANTA SHILA DEVI

JUDGEMENT

(1.) This is a glaring case where the travesty of justice has been caused by the act of the parties. By an award made by the Late Dr. Radha Binod Pal on 27th May, 1955, several persons were directed to pay a sum of Rs. 5,000 each to the petitioner Sm Santa Shila Devi. the relevant clauses of the said award read as follows:

(2.) It appears that the petitioner is moving this application only against M/s Dhirendra Nath Sen. Jitendra Nath Sen, Satyendra Nath Sen, Phanindra Nath Sen and Rabindra Nath Sen. Under the award dated 27th May 1955, each one of the said five respondents was to pay the instalment amount of Rs. 5,000 on 1-9-55. 1-12-55, 1-3-56, 1-6-56 and 1-9-56. The petitioner in the tabular statement has asked for appointment of a Receiver with respect to the respondents' share in the properties allotted to them under the award and for sale of their interest on the ground that the respondents have defaulted in making the payments under the award and that their respective interests in the properties allotted to them stood charged.

(3.) Mr. Ajoy Basu (with Mr. Harendra Kumar Ghose) on behalf of the respondents, has contended that in view of the facts that the money was duly tendered to the petitioner's solicitors and his clients were ready and willing to make the payment at all material times, there was no question of any default on the part of his clients. The petitioner herself has refused to accept the money tendered to her solicitor and the alleged default was caused by the petitioner's own conduct. Mr Basu has further submitted that his clients would not have opposed the petitioner's prayer but in view of the fact that she has taken extraordinary attitude in taking recourse to all kinds of proceedings civil and criminal, against his clients, he has no other alternative but to raise also a point of demurrer. According to him, this is a misconceived application. In a tabular statement, the petitioner has not asked for any general prayer like attachment or a receiver. She has specifically prayed for the appointment of a receiver and for sale of his clients' interests in 7/1, Short Street and 7, Rowdon Street, Calcutta on the basis that the petitioner has a charge on the said interests. According to him, even assuming that there was default on the part of his clients, the decree is only a money decree. The words expressed in the said Clause 10(c) are "the payments shall remain charged" and not the payments "remain charged." There is no automatic charge created under the decree. If it is held that the petitioner has a charge on the properties, the petitioner's only relief is to file a suit and get a decree under order 34, Rules 14 and 15 of the Code of Civil Procedure read with Section 100 and Section 67 of the Transfer of Property Act, 1882. In support of the said contention, reliance has been placed by him on Kanhaiya Lal v. Jangi, AIR 1926 All 527, Gobinda Chandra Pal v. Kailash Chandra Pal, 25 Cal LJ 354 = (AIR 1917 Cal 82(2)). Lastly, he has also contended that a charged property can only be sold without recourse to a suit only if there is a specific clause in the decree itself to the effect that such relief would be obtained by the creditor without instituting any suit, and in support of his contention he has drawn my attention to Kashichandra v. Priyanath Bakshi, 28 Cal WN 550 = (AIR 1924 Cal 645) and Postimal v. Radhakrishan Lalchand, ILR 54 All 763 = (AIR 1932 All 439).