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Kartic Prosad Khettry Vs. Amar Nath Khettry and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberSuit No. 1651 of 1935
Judge
Reported inAIR1973Cal115,76CWN992
ActsWest Bengal Estates Acquisition Act, 1954 - Section 26
AppellantKartic Prosad Khettry
RespondentAmar Nath Khettry and ors.
Advocates:Ranadeb Chowdhury and ;P.N. Chatterjee, Advs.
DispositionApplication allowed
Cases Referred(Lagdir Nauii v. Surendra Mohan Nag). It
Excerpt:
- .....the decree was by consent of the parties. clause 3 of the decree, provided, that the defendant amar nath khettry would pay to the plaintiff kartic prosad k'hettry rs. 4,000/- (being the excess amount) taken by the said defendant from the receiver appointed in the suit within 6 months from the date of the decree and the properties allotted to the said defendant in terms of clause 1 of the said decree remain charged and in default of payment, the plaintiff would be entitled to execute the decree with interest (5) 6% per annum on the said sum of rs. 4,000/-.2. clause 4 of the decree, provided, that the defendant amar nath khettrv would return the valuables and jewelleries to the plaintiff within one vear and a half from the date of the decree, and in default, the said defendant amar.....
Judgment:
ORDER

Hazra, J.

1. This is an application for execution of a decree dated July 10, 1945 passed in a Partition and Administration Suit. The decree was by consent of the parties. Clause 3 of the decree, provided, that the defendant Amar Nath Khettry would pay to the plaintiff Kartic Prosad K'hettry Rs. 4,000/- (being the excess amount) taken by the said defendant from the Receiver appointed in the suit within 6 months from the date of the decree and the properties allotted to the said defendant in terms of Clause 1 of the said decree remain charged and in default of payment, the plaintiff would be entitled to execute the decree with interest (5) 6% per annum on the said sum of Rs. 4,000/-.

2. Clause 4 of the decree, provided, that the defendant Amar Nath Khettrv would return the valuables and jewelleries to the plaintiff within one vear and a half from the date of the decree, and in default, the said defendant Amar Nath Khettrv would pav Rs. 5,000/- to the plaintiff with interest @ 6% per annum from the date of expiry of the said one and a half year. The properties allottedto the said defendant also would remain charged for the said sum.

3. On or about June 5. 1957 the plaintiff applied for execution of the decree for realising the sum of Rupees 14,842/8/- with interest.

4. On or about September 9. 1957 the terms of settlement were put in the said execution proceedings and the order was passed as agreed in the terms of settlement. The terms of settlement were as follows :

(1) The defendant Amar Nath Khettrv admits that the whole of the decretal amounts being the sum of Rupees 4,000/- and Rs. 5,000/- with interests thereon as pursuant to the said decree dated 10th July, 1945 still remain due and owing to the plaintiff which will be paid off within three years from date hereof.

(2) The defendant Amar Nath Khettrv shall pay the said sums put of the compensation money payable in res-pect of the collieries in Mouza Chatha-patha. Sabanpar and Chaptoria awarded by the Government of West Bengal to the said Amar Nath Khettry at a time or by instalment as will be paid by the said Government of West Bengal to him.

(3) That the costs of and incidental to this application shall also be paid to the plaintiff by the said defendant Amar Nath Khettrv.

(4) Execution will be issued as prayed but the samp will not be executed for three years from date hereof. If payment is not made within throe years from date hereof the plaintiff will be at liberty to enforce execution against the defendants.

(5) Liberty to apply.

5. The defendant failed end neglected to pav the said sum of Rupees 14,842/8/- in spite of the above terms and settlement,

6. On September 2. 1969 this application for execution by tabular statement was made against the defendant Amar Nath Khettrv alone. The prayers in the tabular statement have been made in a very wide form. The prayers are : for appointment of Receiver of the compensation money and/or any security for such money either in Bond, Government Paper. Government security, etc. to be awarded in respect of Mouzas Chatha-pather. Subanpur and Chaptoria in the district of Burdwan payable to the said Amar Nath Khettrv and/or their assignee or assignees by the District Compensation Officer, Burdwan. Government of West Bengal end/or any arrangement between the said Amar Nath Khettrv and his said sons with any other person or persons regarding the payment of the said compensation monev.

7. In the affidavit in support of the tabular statement Kartick Prosad Khettry the plaintiff stated that defendant Amar Nath Khettry has no other properties except the compensation money to be awarded and to be paid to him by the District Compensation Officer. Burdwan, West Bengal, in respect of the collieries in Mouza Chathapatha Sabanpur and Chaptoria in the district of Burdwan and the said defendant agreed to pay the amount due out of the compensation money. About a sum of Rs. 30,000/- to Rs. 35,000/- will be due and payable by the State of West Bengal through the District Compensation Officer Burdwan, to the said defendant being the compensation money in respect of the above Mouzas. Besides in terms of the decree the said properties remained charged for the decretal dues.

8. It is also stated in the affidavit that the defendants Purusattam Khettry. Amar Nath Khettry, Beioy Kumar Khettry and Arun Kumar Khettry who were minors at the time of passing of the decree have since attained maiority. In the tabular statement, however, it appears that the decree is sought to be executed against defendant No. 1 Amar Nath Khettry only.

9. When the application wasmoved before me, Mr. P. N. Chatteriee Advocate for the petitioner stated that the notice under Order 21. Rule 22 (1) of the Code of Civil Procedure has duly been given on the defendant Amar Nath Khettry, but he did not appear.

10. In this application the plaintiff wants the assistance of the Court by appointment of the Receiver in respect of compensation money payable to the defendant Amar Nath Khettry. Under Section 26 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954) it is provided that save as otherwise provided in proviso to subsection (1) of Section 7. no portion of the compensation money payable to any intermediary in terms of any Compensation Assessment Roll finally published under Section 21 in excess of 50 per centum thereof shall be liable to attachment at any time in execution of decree including decrees for arrears of rent.

11. The question is whether this Court will appoint a Receiver in execution proceeding in respect of the whole of the compensation money when the Estates Acquisition Act provides that only 50% of the compensation money is liable to attachment at any one time in execution of a decree. Mr. Ranadeb Chow-dhuri. the learned counsel for the petitioner appearing with Mr. P. N. Chatteriee. submitted that this is a case where the decretal amount has been charged in respect of the properties allotted to thejudgment-debtor for payment of the dec-? retal amount by consent of the parties as will appear from the consent decree itself. He further submitted that in any event on June 5. 1957 by the terms of settlement the judgment debtor Amar Nath Khettrv agreed to pay the said sum of Rs. 4,000/- and Rs. 5,000/- out of the compensation money payable in respect of the collieries mentioned in the terms of settlement. He also submitted that by the words 'payable out of the compensation money', in Clause 2 of the terms of settlement the parties intend--ed that there would be an equitable charge in respect of the compensation money. In support of the said prooosi-tion Mr. Ranadeb Choudhury cited, (1963) 67 Cal WN 498, (Cooch Behar Bank Ltd. v. Jatindra Nath Ghose) where it has been held by Bachawat, J. following (1959) 63 Cal WN 869. (Nirmala Sundari Dassi v. Mrinalini Dassi) that mortgagee or charge-holder has a right to a payment of the money secured by the mortgage or charge independently of by any attachment. It was pointed out that the order for appointment of Receiver is not an order for attachment. It was held that Section 26 of the Estates Acquisition Act does not limit the extent of the recovery by the mortgagee or charge-holder who sought to realise his dues by appointment of a Receiver; of the compensation money.

12. With regard to the other point namely, that the words 'that the defendant Amar Nath Khettry shall Pay the said sum out of the compensation money'. Mr. Ohoudhury cited 49 Ind App 153 = (AIR 1922 PC 107), (Khajeh Sule-man Quadip v. Salimullah Bahadur) and 42 Cal WN 971 = (AIR 1938 Cal 606), (Lagdir Nauii v. Surendra Mohan Nag). It seems to me that under the consent decree as also by the terms of settlement dated September 9. 1967, a charge has been created for payment of the decretal amount from the compensation money payable to the iudgment-dehtor end in view of the above matter a Receiver may be appointed as prayed in column 10 of the tabular statement.

13. I appoint Mr. Suiit Kumar Sinha. Barrister-at-Law as Receiver to realise the compensation money or any security for any such money either in bond. Government paper, etc. to be awarded to the defendant Amar Nath Khettry in respect of mouaas Chattapa-ther, Subanpur and Chaptoria in the district of Burdwan. The Receiver to realise the share of the compensation money of the iudgment-debtor Amar Nath Khettry and make payment and/or delivery of the same to the plaintiff in satisfaction of the decretal amount. If there is any surplus the same should be paid to the judgment-debtor. The Receiverwill get remuneration of 40 G. Ms. Immediately on receipt of the amount of compensation money the Receiver must inform the plaintiff as also the defendant Amar Nath Khettry as to the realisation made by him. The petitioner will Set the costs of the execution proceeding. The Receiver and the Compensation Officer to act on the signed copy of the minutes on the undertaking of the petitioner's Solicitors to draw up and com-plete this order. Certified for counsel.


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