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A.C. Dastoor Vs. S.A. Kandawalla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal327
AppellantA.C. Dastoor
RespondentS.A. Kandawalla
Cases Referred and Ambalal Bapulhai v. Narayan Tatyaba
Excerpt:
- .....future, of the business in question. the terms of settlement also include liberty to apply.2. the present suit has been brought for the purpose of enforcing the charge created by the second term in the terms of settlement. the defendant maintains that the suit is unnecessary, and that the plaintiff could have obtained all the relief to which he is entitled by executing the consent decree. i am of opi-nion that the defendant's contention is correct. it is not uncommon for suits to be brought to enforce a charge upon immoveable property created by a decree. the reason for this is that, owing to the provisions of order 34, rule 14, the person in whose favour the decree creates a charge is precluded from enforcing it by execution, unless the decree specifically makes provision to the.....
Judgment:

Panckridge, J.

1. In this case the only question is one with regard to procedure. The plaintiff brought a suit for dissolution of partnership and for accounts and the appointment of a receiver. On 8th June 1932, a consent decree was passed. The relevant paragraphs of the terms of settlement annexed to the decree are term (a), which provides that the defendant shall pay the sum of Rs. 4,000 with interest at 6 per cent, until payment, and term (b), which provides that the principal sum with interest shall form a first charge on the assets including the goodwill, stock-in-trade, and outstandings, present and future, of the business in question. The terms of settlement also include liberty to apply.

2. The present suit has been brought for the purpose of enforcing the charge created by the second term in the terms of settlement. The defendant maintains that the suit is unnecessary, and that the plaintiff could have obtained all the relief to which he is entitled by executing the consent decree. I am of opi-nion that the defendant's contention is correct. It is not uncommon for suits to be brought to enforce a charge upon immoveable property created by a decree. The reason for this is that, owing to the provisions of Order 34, Rule 14, the person in whose favour the decree creates a charge is precluded from enforcing it by execution, unless the decree specifically makes provision to the contrary. I do not think that the rule applies to the case before me. It is not accurate to say that, in the former suit, the plaintiff

obtained a decree for payment of money in satisfaction of a claim arising under a mortgage.

3. The whole of the order is in fact inapplicable to the circumstances of the present case, since it is explicitly concerned with suits relating to mortgages of immoveable property. The former suit is not a suit of that description. Moreover, even where immoveable property is concerned, unless the suit can be brought within the four corners of Rule 14, the Court will allow the mort gagee (if I may call him so), to enforce his right by execution. I need only refer to Hari Sankar Rai v. Tapai Kuer AIR 1926 Pat 31 and Ambalal Bapulhai v. Narayan Tatyaba AIR 1919 Bom 56. In my judgment, the suit is one that is not maintainable by reason of the provisions of Section 47, Civil P. C. However, under Sub-section (2) of that section I am at liberty to treat it as an application for execution made in the former suit. I therefore appoint a receiver of the property charged with power to sell the same and apply the proceeds in satisfaction pro tanto of the decree obtained by the plaintiff. The plaintiff must however pay the defendant his costs of this suit, but will be entitled to add the costs of an application for execution to his claim.


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