DWIJENDRA KRISHNA DUTTA Vs. SURENDRA NATH NAG CHOUDHURY

JUDGEMENT

(1.) A sale which took place in execution of a mortgage-decree in respect of the properties mortgaged having been set aside under Order 21, Rule 90, Civil P.C., by the Subordinate Judge, Third Court, 24 Parganas, the decree-holders have preferred an appeal to this Court being appeal from Original order No. 200 of 1926, and the said appeal is yet pending. After preferring the appeal the decree-holders applied for the appointment of a receiver in respect of the mortgaged properties. By orders-passed on the 17 and 19 August 1926 this Court appointed a receiver to continue in office till the disposal of the appeal. As the result of further orders to which it is not necessary to refer Mr. Dwijendra Krishna Dutt, a Vakil of this Court, was finally appointed as such receiver with all the powers provided for in Order 40, Rule 1, Clause (d) of the Civil P.C., and a writ of appointment was issued in his favour on or about the 28 September 1926. The writ directed "that the said receiver do at once take possession of the mortgaged properties, for discharging his duties as such receiver."

(2.) The properties, we are told, are comprised within three Touzis, being Touzis Nos. 614, 633 and 1825, the first two being governed by a cutchery at a place called Sobaria and the last one, a cutchery at a place named Chaita. The principal amount secured by the mortgage which is dated somewhere about 1915, was Rs. 1,95,000, the amount of the mortgage-decree is Rs. 3,95,000 of which Rs. 25,000 has since been paid off by the mortgagors and at the sale which took place in execution of the said decree-and which has been set aside and the validity of which forms the subject matter of the appeal, the decree-holders themselves purchased the properties for Rs. 2,25,000.

(3.) For our present purposes it is not necessary to narrate the experiences of Mr. Dutt in connexion with the work to which he was appointed it is sufficient, to say that they are not very happy and it is clear that he is labouring under-considerable difficulty and disadvantage in his endeavours to manage the estate and meet its dues and demands and to save it from being sold away. He submitted a report dated 10 November 1926, from which the following facts may be gathered. He appears to have attempted to serve personally through an officer of his, notices on Surendra Nath Nag Chowdhury, Satyendra Nath Nag Chowdhury and Jitendra Nath Nag Chowdhury, three of the judgment-debtors, calling upon them to supply him with collection papers of the estate. These notices were not accepted. He then sent the notices through registered post, when they were accepted by Satyendra Nath Nag Chowdhury and Jitendra Nath Nag Chowdhury but refused by Surendra Nath Nag Chowdhury. Not being able to get any collection papers he went out to do as best as be could in the matter of making collections from the tenants. He went to the cutchery at Sobaria to take possession of it, but was resisted by one Amoda Kumar Nag Chowdhury a son of Surendra Nath Nag Chowdhury and his officers and Durwans. He had to take the assistance of the Police but even then the said Amode Kumar Nag Chowdhury and one Nibaran Chandra Nag, one Nani Gopal Bose, officers of the said Surendra, Satyendra and Jitendra, refused to give him possession of the cutchery and, on the other hand, went on making collection from the tenants on receipts bearing back dates. The police appears to have reported to the Magistrate who thereupon issued prohibitory notices. Attempts to serve these notices proved futile as in the meantime the aforesaid persons left the place locking up the cutchery and some of them persisted in making collections on giving antedated receipts. In one of the mouzahs, namely, Narayanpur the said Nibaran Chandra Nag, one Fani Bhusan Bose and one Monbahar Singh, employees of the said three judgment-debtors, openly went on dissuading the tenants from paying rent to the receiver.