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 13th 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 13th 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 20th 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 8th 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 17th 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.
4. Then he referred to a number of cases. He held that Section 65, T.P. Act, did not apply to leases of this kind. Further he stated that it had been contended that under sub-Cl. 2 of Order 40, Rule 1 these tenants were protected but as the mortgagee or a Receiver appointed, on behalf of the mortgagee had a present right to remove from the possession or custody of property any person in possession that section was not of much avail to the tenant-defendants. The position would have been otherwise had the tenants been in possession of the land from before the English mortgage, but that was not so in this case. Further he stated that in fact the leases were granted with the object of making a large profit at the expense of the mortgagee's interest which had seriously depreciated the value of the property which was khas patit land, and the object of the leases could not be said to be one in the ordinary course of management. This conclusion and the observations of the learned Judge appear to me to be correct. Thereafter when the time came for reaping the crops, the respondents cut and carried away the standing crops and the petitioner made an objection to the Court praying that action be taken against the opposite parties for contempt of Court. An order was made to draw up proceedings for contempt but further proceedings were not taken upon it.
5. On 20th June 1932 a final decree for foreclosure was passed debarring the respondents and others claiming through and under them from exercising any right to redeem the mortgage and directing them to deliver possession. The petitioner applied for execution of the decree for cess, but an objection was raised under Section 47, Civil P. C, and the same being overruled, an appeal was preferred to the High Court against those proceedings, which is still pending. The petitioner has not as yet entered into possession as decree-holder nor has he applied for discharge of the receiver. In November 1933 while the petitioner was in possession as receiver, the respondents again began to disturb his possession by damaging the winter crops, and on 22nd November 1933 an order under Section 144, Criminal P.C., was made against the respondents restraining them from interfering with the possession of the receiver. But immediately on the expiry of two months from the date of the said order, the respondents on various dates entered into the lands in possession of the receiver and forcibly took away the winter crops from about 300 bighas of land, and in April 1934 removed all the fish from a Jhill measuring about 140 bighas to the value of several thousands of rupees. These facts alleged by the petitioner are denied on behalf of the respondents who stated that there was no jhill on the property.
6. As I shall point out hereafter, it is not necessary to consider the correctness of these statements. In August, November and December 1934 the respondents again forcibly took away the crops raised on the disputed lands by the bhagdars and ticcadars settled on them by the receiver. Consequently on 19th January 1935 the petitioner made a report to the Court and the Court started proceedings under Section 476, Criminal P.C., and issued notices to the respondents to show cause why they should not be punished for contempt of Court. During the pendency of the contempt proceedings, the respondents appeared before the settlement officer and filed a petition in which they stated that they were in possession of the lands in dispute and that the receiver had no right to oust them. Further they asserted that every time the receiver attempted to take actual possession they had resisted him. This in itself was obviously a contempt of Court.
7. It is clear from the affidavit that the respondents did not deny that they had cut the standing crops and that they had resisted and obstructed the receiver. Their contention was that they had every right to do so because they were rightfully in possession of the lands as tenants. Obviously, this assertion was no answer to the charge for contempt.
8. It is argued that these tenants are illiterate and that they do not understand the position in law. But they certainly ought to have known that an order had been passed by the Court placing the property in the possession of the receiver of the Court, and that they were running a grave risk if they attempted in any way to interfere with the possession of the person whom the Court had put into possession. It is not contended that these respondents were not aware that a receiver had been appointed.
9. The learned Subordinate Judge with regard to the contempt proceedings held that he had no jurisdiction in the matter and that the application should be made to the High Court, which is the genesis of the present proceedings, I have only referred to this past history in order to show that the respondents cannot contend that what is now complained of was an isolated act and made without knowledge of their position. This previous history shows that repeatedly these respondents have been guilty of obstructing and interfering with the possession of the receiver. But the particular case with respect to which this rule has been issued occurred in March and April 1935 and April, August and November 1934 as set out in paras. 15 and 16 of the petition namely, cutting and taking away growing crops and catching and carrying away fish.
10. The petitioner moves in this proceeding in his capacity as the plaintiff decree-holder. It has been held in a decision of this Court that is the proper procedure, and that the plaintiff in the suit should apply to the Court to obtain the protection of the Court after the appointment of a receiver rather than that the receiver should make the application himself. I have no reason to doubt that is the correct procedure. As I have stated, this seems to me a clear case of contempt. The only real contention that has been raised on behalf of the respondents is that they believed themselves to be rightfully in possession as tenants. But that really is no answer, because they are expected to know the law and they were aware of the fact that a receiver had been appointed by the Court, and that an order had been passed giving him possession of the property. Further they were aware that the Court had decided that they had no right to take the crops nor had any right to remain on the land. In face of these facts it can hardly be contended that these respondents did not know perfectly well that they had no right to obstruct the receiver or interfere with his possession of take away the crops which had been grown on the lands by the bargadars and ticcadars settled on them. One contention of law that has been raised is that the respondents are really charged with theft of crops and interference with a public servant. These are matters which are punishable under the Penal Code, and therefore no High Court has a right to take cognisance of such contempt because such a contempt is an offence punishable under the Penal Code. This seems to be a misinterpretation of the section. In Jnanendra Prosad Bose v. Gopal Prosad Sen, 1933 Pat 204 it was decided that only those contempts which are punishable by the Code as contempts of Court are excluded from the jurisdiction of the High Court by the Act. I find myself in agreement with that decision as the only reasonable construction to be put upon the section.
11. It only remains to decide what punishment is to be inflicted upon the respondents. Undoubtedly, the contempt is serious. On the other hand, it is clear that the respondents are mere cultivators, and possibly men of little understanding of legal matters, and are illiterate and were perhaps unaware of the seriousness of the steps which they were taking. In the circumstances, it will be sufficient if each of the accused is sentenced to pay a fine of Rs. 5 and the rule is made absolute in these terms.
12. I agree.