NARAYAN CHANDRA CHATTERJEE Vs. PANCHU PRAMANIK

JUDGEMENT

(1.) In this case a Rule was issued on the opposite parties to show cause why they should not be committed for contempt, or why such other or further order should not be made as to this Court might seem fit and proper. There are 21 persons against whom this Rule has been issued, and, so far as I can understand the affidavit in reply, the acts alleged by the petitioner to have been committed by these respondents are admitted by them, and, if so they clearly amount to contempt of Court. The petitioner as a liquidator of Joakim Nahapiet & Co. Ltd. in liquidation instituted a mortgage suit numbered 114 of 1932 in the Court of the First Subordinate Judge of Pabna for a decree for foreclosure against Badruddin Biswas the mortgagor, and several other persons including the opposite parties who were impleaded as persons who had been inducted or let in as tenants on the land by the mortgagor, who had executed an English mortgage in favour of the company.

(2.) Under this mortgage the mortgagor remained in possession, as is usual under an English mortgage, and it is not contended that the mortgagee had any knowledge of the alleged tenancies or leases which, the respondents say, the mortgagor made in their favour. In the counter-affidavit there is a half-hearted suggestion that some of the respondents, without naming anyone, had some possessory right prior to the date of the mortgage. This however was denied by the petitioner, and, in my opinion, his contention must be accepted on this point. During the pendency of the mortgage suit the petitioner was appointed Receiver of the mortgaged properties by an order of the Court dated 13 July 1932 and according to his petition, he was placed in possession of the mortgaged properties after ejecting the opposite parties and others in due course under Order 21, Rule 25, Civil P.C., and, as such. Receiver he entered into possession of the property and in due course settled bargadars and ticcadars on the land and paid Government revenue and cesses. There is nothing in the affidavit by the respondents which would lead me to think that this statement of the petitioner is inaccurate. The order of 13 July 1932 states that the Pleader for the opposite parties was informed and called but that he did not appear and oppose the application and that it appeared from the affidavit that it was just and proper that a Receiver of the mortgaged properties should be appointed. The Court directed that the plaintiff Narain Chandra Chatterji, Liquidator to Joakim Nahapiet & Co. Ltd., be appointed Receiver. The order further states: The terms of the appointment will be settled later on, on the application of the Receiver. Meanwhile, let the Receiver take possession of the mortgaged properties.

(3.) On 20 July 1932 the terms of appointment were settled and an order was made reciting that Narain was Receiver of the mortgaged properties and authorising him to take possession of the mortgaged properties and to realize all income including arrears, and to institute and defend suits and other legal proceedings in respect of those properties and making him liable to render due and proper account. Subsequently, the petitioner seized the standing crop on the mortgaged land. The defendants in the suit other than the mortgagor filed a petition dated 8 August 1932 claiming the standing crops and asking for directions to the Receiver to abstain from seizing the crops on the allegations that the Receiver was not entitled to khas possession or to the standing crops inasmuch as they were tenants settled upon the land by the mortgagor under the mortgage. By the Court's order dated 17 August 1932 it was decided that the Receiver was entitled to the standing crops and none of the defendants had any right to remain on the land or to claim the standing crops. The learned Judge pointed out that it was an English mortgage and that the Receiver had every right to seize the standing crops, because under an English mortgage he has the right to enter upon possession of the property immediately upon the execution of the deed, the mortgagor being liable to ejectment at any time by the mortgagee. The Receiver had stepped into the shoes of the mortgagee and the mortgagor was not entitled to the standing crops which he had grown, and might be ejected by the mortgagee under an English mortgage at any time without notice, and a person who came in as a tenant under the mortgagor could not be in any better position than the mortgagor. Further, he said that it appeared from the leases produced before him that the mortgagor had granted long terms of leases to tenants on receipt of premium, and he found that in the absence of an express reservation of such a right the mortgagor had no power to grant a lease of the mortgaged properties so as to bind the mortgagee.