Mitter, J. - (1.) This is an application for a certificate under Article 133 or the Constitution. There is no doubt that the value of the subject matter of the dispute is much above Rs. 20,000/- and the prayer is that the Court should certify that the appeal involves a substantial question of law or alternatively that the case is a fit one for appeal to the Supreme Court.
(2.) The facts are as follows: The respondent bank mace advances of money to the appellant and the second respondent Murari Mohan Chatterjee on certain securities. By consent of parties a decree was passed on March 14, 1958 declaring a charge on the properties of the appellant mentioned in the schedule annexed to the terms of settlement and directing the decretal amount of Rs. 10,00,000/- to be paid in certain instalments spread over 20 years and providing further that in default of payment of the amount of six monthly instalments due within a calendar year the decree-holder would be at liberty to proceed to realise the same by execution sale of the charged assets or any part thereof without instituting a fresh suit. The properties referred to in the schedule are certain machinery, plants, furniture, fittings, equipment and utensils. As there was default on the part of the appellant to pay the monthly sums the decree-holder applied for execution of the decree on a tabular statement filed on December 22, 1960. The amount for which execution was levied was Rs. 1,00,625/- being the moneys due in respect of 23 instalments of Rs. 4,3/5/-each. The mode in which assistance of the Court was required under column 10 of the tabular statement was "by appointment of receiver to sell the assets or a sufficient part thereof which stood charged for repayment or the decretal amount under the said decree dated March 14, 1958 in terms of Clause 5 of the said terms of settlement. . . . and also by appointment of a receiver of the portion or the leasehold premises being the ground floor and first floor of the main building of premises No. 6, Bentinck Street, Calcutta, and/or such order or other orders as to this Court might seem fit and proper." The tabular statement was accompanied by an affidavit of Jitendra Nath Sen, Chief Accountant of the decree-holder bank, who after referring inter alia to the terms of settlement stated that the defendant had failed and neglected to pay any sum payable under the decree, that he had learnt from the landlord of the leasehold premises that the defendant had made default in payment of rent for a considerable period, that the defendant had made an application on November 18, 1959 for recording an alleged adjustment of the decree which had, however, been dismissed and by reason of the defaults committed by the defendant the decree holder was seeking to execute the decree by appointment of a receiver to sell the assets or a sufficient part thereof as also by appointment of a receiver over the leasehold premises. There was an averment that in the facts and circumstances of the case it was just and convenient that a receiver should be so appointed.
(3.) One Bejoyananda Dutta, a Director of the appellant company, affirmed an affidavit in opposition on August 16, 1961. The main contention therein put forward was that the decree under execution had been adjusted and/or satisfied by agreement in writing dated July 18, 1959 between the Bank and the Press. A copy of the agreement which formed an annexure to the decree in suit No. 2831 of 1956 wherein one Sadananda Chatterjee was the plaintiff and the Press, the Bank and Murari Mohan Chatterjee were the defendants was relied on for this purpose. The terms of settlement in that suit provided that there would be a decree against the Press and the Bank for Rs. 1,00,000/- and the assets of the press would stand charged in favour of the plaintiff Chatterjee for repayment of the decretal amount subject to the prior charge and mortgage in favour of the Bank in suit No. 1734 of 1957 out of which the present application has arisen. The annexure to the terms of settlement contemplated agreements being arrived at between the landlord one Gopinath Auddy and the Bank with regard to the tenancy of a portion of the building and other matters. Bejoyananda Dutta also stated in his affidavit that the application for recording the adjustment had been dismissed but an appeal preferred therefrom was still pending. Dutta's further contention was that in these circumstances the Press was not called upon to pay and/or was prevented from paying the decretal instalment in time and the Bank was not entitled to take advantage of such default. Dutta also stated "that the present dues of the decree-holder can be easily realised by the appointment of a Receiver of the leasehold property alone while if the Receiver is appointed or the other assets of the defendant and there is a forced sale thereof the assets as aforesaid will have to be sold at a gross undervalue." Several other objections with regard to the executability of the decree were taken in the affidavit but it is admitted that at the hearing of the application (which took place before me) the only point Put forward by counsel for the Press was that the decree had been adjusted by virtue of the agreement referred to and could not be executed. This contention did not find favour and an order was made on September 7, 1961 appointing O. Ahmed, a member of the Bar, receiver, in execution of the decree without being required to furnish any security, or the assets and properties charged under the decree and to sell the properties or a sufficient part thereof for payment of the decretal amount under the decree in terms of clause 5 of the terms of settlement as mentioned in cl. 7 of the tabular statement. The order as drawn up shows that the Receiver was clothed with other powers covered by Order 40 Rule 1(d) of the Code of Civil Procedure.;