DHIRENDRA NATH SEN Vs. SANTASILA DEBI

JUDGEMENT

(1.) This is an appeal against the judgment and order of Masud, J. dated September 14, 1967. The facts are briefly as follows: By an order dated November 29, 1954, certain disputes were referred to the sole arbitration of the late Dr. Radhabinod Pal. On May 27, 1955, the Arbitrator made his award Judgment on award was passed on May 22, 1956. The award related to the adjudication of certain disputes between members of the same family. The relevant clause in the said award is clause (10) which runs as follows:

(2.) Thus, five equal quarterly instalments were payable on September 1, 1955, December 1, 1955, March 1, 1956, June 1, 1956 and September 1, 1956. On September 1, 1955, Shri D. Sen, Solicitor for the Party Nos. 2, 4, 5 and 7 mentioned above, wrote to Messrs. T. Banerjee and Co., Solicitor for the Respondent No. 1, enclosing a sum of Rs.4,000 in cash being the amount of the first instalment payable by the four parties above-named in terms of the said award. On the same day, Messrs. T. Banerjee and Co. refused to accept the said tender of Rs.4,000 on the ground that their client, Respondent No. 1, had challenged the award by an application in Court which was pending and their instructions did not permit them to accept it. Similarly, on September 2, 1955, Shri D. Sen, Solicitor for the Party Nos.1 and 6, wrote a letter to Messrs. T. Banerjee and Co., Solicitors for Respondent No.1, enclosing a sum of Rs.2,002 being a payment of first instalment together with Rs.2 as interest. By a letter dated September 2, 1955, Messrs. T. Banerjee and Co. refused to accept the said sum on the same ground, namely, the pendency of an application. On May 22, 1956, the application made by the Respondent No. 1 was dismissed and judgment on award was passed. On May 28, 1956, Shri D. Sen on behalf of the Party Nos. 1, 2, 4, 5 and 7 wrote a letter to Messrs. T. Banerjee and Co. enclosing a sum of Rs.18,000 in cash, stating that it was on payment of the amount payable to their client in terms of the said award and decree. On May 28, 1956, Messrs. T. Banerjee and Co. stated that they would not accept the money without their client's instructions. On May 31, 1956, Shri D. Sen again wrote to Messrs. T. Banerjee and Co. requesting them for information as to whether they had received instructions to accept the money. No reply was sent to this letter. What had happened in the meantime was that an appeal had been preferred by Respondent No.1 against the decree passed on the said award dated May 22, 1956. On January 29, 1957, the appeal was dismissed. On February 18, 1957. Shri D. Sen, as Solicitor for Shri S. N. Sen, wrote a letter to Messrs. T. Banerjee and Co. enclosing a sum of Rs.5,000 in cash stating to be the amount payable to the Respondent No.1 in terms of the said award and decree. On the same day Messrs. T. Banerjee and Co. wrote to Shri D. Sen that they were writing for their client's instructions and the money was held in suspense. On March 8, 1957, Shri D. Sen gave a reminder that 17 days had passed but no receipt had been sent. On March 13, 1957, Messrs. T. Banerjee and Co. returned Rs.5,000 stating that they had been instructed not to accept the amount tendered, but without indicating any reasons for the same. The Respondent No.1 preferred an appeal to the Supreme Court and on April, 1963, the said appeal was dismissed by the Supreme Court. On June 14, 1963, Shri D. Sen on behalf of his client Shri J. N. Sen wrote a letter to Messrs. T. Banerjee and Co. enclosing a sum of Rs.5,000 stating it to be the amount payable by his client to the Respondent No.1 in terms of the said award and decree. This tender was not accepted. Thereafter, nothing seems to have happened for about for years until on February 13, 1967, Messrs. T. Banerjee and Co. wrote a letter to the Party Nos. 1, 4, 5, 6 and 7 above-named demanding payment of Rs.35,000 together with all accrued interest upto the date of payment and threatening that, in default steps for execution of the award and decree would be taken. On March 3, 1967, Shri D. Sen wrote to Messrs. T. Banerjee and Co. that his clients had tendered the proper amounts in time, but the same were not accepted and that they were ready and willing to pay the principal sum but no interest. The letter contained the following other statement: Please send the draft Release, which your client shall have to execute on receipt of the amount from my client, for my approval so that payment of the amount and execution and registration of the Lease Deed can be simultaneously done.

(3.) On March 8, 1967, Messrs. T. Banerjee and Co. wrote to Shri D. Sen that tenders made without interest were not valid tenders and were rightfully refused. It was further stated that the award did not provide for execution or registration of and release deed and that his clients were not entitled to defer payment of the amount until the execution or registration of such a deed. It was, however, stated that upon the amount being paid with interest the Respondent No.1 was willing to execute the deed at the cost and expense of the judgment-debtors. Cost was also demanded for preparation of a deed of release. By a letter dated March 11, 1967, Shri D. Sen on behalf of his client rejected these contentions stating that no interest was payable, that the payment and execution and registration of the release must be simultaneous. It was further stated that his clients were not agreeable to pay the cost for preparation of the release, but were agreeable to pay the cost for preparation of the release, but were agreeable to bear the cost of stamp and registration. This view was not accepted by the decree-holder, and on May 19, 1967, an application was made for execution. A copy of the tabular statement appears to pp. 1 to 7 of the paper-book. It was stated therein that the decree, so far as Shri P. N. Sen and Shri A. N. Sen are concerned, had been satisfied and this should be recorded. It was further prayed that a Receiver should be appointed to take charge and sell the undivided one-third share of Shri D. N. Sen in premises No.7, Rawdon Street, Calcutta, the undivided one-third share of Shri J. N. Sen in premises No.7/1, Short Street, Calcutta, the undivided one-third share of Shri S. N. Sen in premises No.7, Rawdon Street, Calcutta, the undivided one-third share of Shri F. N. Sen in premises No.7/1, Short Street, Calcutta, and the undivided one-third share of Shri R. N. Sen in premises No.7/1, Short Street, Calcutta. This application was resisted by the judgment-debtor and the matter came up before Masud, J. who by his judgment dated September 14, 1967, ordered as follows: (i) It was held that the tenders dated September 1, 1955 and September 2, 1955, but they are liable to pay interest from September 2 until payment. As against Shri S. N. Sen interest on a sum of Rs.5,000 between February 18, 1957 and March 13, 1957, was disallowed as the money was held in suspense account and not returned. (ii) The Official Receiver was appointed Receiver as prayed for by the Respondent No.1 and the judgment-debtors were all made liable to pay the costs of the said Official Receiver. There was, however, no costs awarded regarding the application. It is against this judgment and order that this appeal is directed. It is better to make it clear here that the appellants before us are Shri D. N. Sen, Sri S. N. Sen, Shri R. N. Sen and Shri F. N. Sen. We are not concerned with others against whom the decree has been adjusted. In the Court below, a number of points were urged on behalf of the appellants, but before us only three points have been urged. The first point is that the application for execution was misconceived because the charge declared in the decree could only be enforced by a suit. The second point is that the appointment of Receiver in execution was a method of equitable execution which could only be resorted to if there was any legal impediment to the ordinary mode of execution. As there was no such impediment in this case the application for appointment of Receiver was misconceived and should not have been allowed. The third point is that, in the facts and circumstances of this case, no interest was payable, as the decree-holder failed and neglected to accept lawful tenders and, therefore, the order of the learned Judge directing payment of any interest was not sustainable. I shall now proceed to consider the first point, namely, as to whether in the circumstances of the cause it was necessary to file a suit. The way that Mr. Basu, appearing on behalf of the appellants, has framed his case, is briefly as follows: He argues that as a matter of law, where a charge is declared in a decree, if the decree itself states that the charge could be realised by a sale in execution, then only such a procedure could be adopted. Otherwise, the charge can only be enforced by way of suit. Mr. Chatterjee, on behalf of the respondents, has argued that this is not a correct proposition of law. According to him, it is only where a charge is declared prior to the passing of the decree that it is necessary for its enforcement that a suit should be filed. Whatever was the position before the introduction of Order XXXIV, Rule 14 of the Code of Civil Procedure (V of 1908) after its introduction, a charge declared by the decree itself can be enforced in execution and it is not necessary to file a suit to enforce such a charge and it is immaterial whether there is a provision in the decree itself to that effect or not. For this purpose both sides have cited a series of decisions of the Calcutta High Court as well as other High Courts and the Supreme Court and, in my opinion, it would be useful if I deal with the cases, as far as possible, chronologically. But before I do so, it would be useful to set out the relevant provision of Order XXXIV, Rule 14 which runs as follows: Where a mortgagee has obtained a decree for payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such a suit notwithstanding contained in Order 11, Rule 2.