- (1.) This is an appeal by the defendant judgment-debtor Messrs. Thacker's Press & Directories Ltd., from an order, dated September 7, 1961, of our learned brother, G. K. Mitter, J., appointing, it is said, a receiver in execution.
(2.) The answering respondent in this appeal is the Metropolitan Bank Ltd., hereinafter referred to as the Bank. On September 6, 1957, the Bank instituted a suit against the appellant and one Murari Mohan Chatterji, the other and non-appearing respondent in this appeal, for recovery of Rs.6 lakhs and odd. On March 14, 1958, the suit culminated in a consent decree against the appellant for Rs.10 lakhs, payable by monthly instalments, spread over 20(twenty) years, - Rs.4375/- a month from January, 1959 to December, 1978, the last instalment being of the final and reduced amount of Rs.2,500/-. In the decree, there were provisions inter alia for rebate on punctual payment and for interest in case of defaults. The decree aforesaid also declared a charge on a lease-hold and certain publications and machineries, plants, etc., all listed in the schedule to the terms of settlement, forming part of the decree itself. This was done on the footing of a deed of hypothecation, dated October 25, 1952, and a deed of mortgage, dated July 26, 1955, with this limitation that the deeds would not run beyond the properties, just referred to above. In other words, the charge was to be 'only on the properties as mentioned in the schedule, referred to above and annexed thereto' as the third clause in the relevant terms of settlement puts it.
(3.) The appellant defaulted in paying instalments : not one, not two, but so many as twenty three, and from the very beginning, namely, from January, 1959, the first instalment having been payable by January 31, 1959, and the twenty-third by November, 1960. That led the Bank to levy execution on December 22, 1960, for twenty three monthly instalments of Rs.4375/- each, coming up to Rs.1,00,625/- in all, Clause 5 of the terms of settlement entitled the Bank to apply for execution for recovery of the aforesaid unpaid instalments. The mode of execution, sought for, was appointment of a receiver 'to sell the assets or sufficient part thereof', charged for payment of the decretal amount. Clause 5 of the terms of settlement also entitled the Bank 'to get a receiver in execution' but of the charged lease-hold only, for letting it out, collecting rents, etc.;