A.K.Sarkar, J. - (1.) This is an application by the defendants for execution of a decree for owelty money being Rs. 4,315/- and interest at 6 per cent, per annum being As. 1593/-calculated from the date of decree i.e., 21st December, 1965 to 15th February, 1972 with further interest on the said sum of Rs. 4315/- until payment and for costs of the execution proceedings by appointment of a Receiver and sale of the property allotted to the plaintiff and charged for payment of the said owelty money with interest at 6 per cent, per annum under the said decree viz., the divided Western portion of premises No 4-B, Chowringhee Road, Calcutta described in the schedule set out in column 10 of the Tabular Statement. Costs of partition proceedings directed to be borne and paid by the parties in proportion to their respective shares have not been taxed by the parties.
(2.) By the Return of the Commissioner of Partition dated July 26, 1965, the properties were partitioned in Lot No. 1 and Lot No. 2. The properties in Lot No. 1 were allotted to the plaintiff and those in Lot No. 2 were allotted to the defendants jointly. The said Return was confirmed by a decree of this Court dated December 21, 1965.
(3.) Mr. S. Pal, Counsel appearing fos the plaintiff contested the application on three grounds:-- (1) the defendants are not entitled to interest wrongly calculated from the date or the confirmation of the Return of the Commissioner. The payment of interest being in the nature of penalty, the benefit of construction of Clause 13 of the Return should be given to the plaintiff: (2) Charge on properties in Lot No. 1 In case of default of payment of owelty money is created by 'the decree. It is not a charge created by act of parties nor created by operation of law and therefore does not come within the provisions of Section 100 of the Transfer of Property Act. Therefore such charge cannot be enforced by sale of the property charged in execution of the decree. This can only be done by instituting a suit for sale in enforcement of the charge. The application therefore, for execution by sale of Western portion of premises No. 4-B, Chowringhee Road, Calcutta in Lot No. 1 is misconceived; that the provisions for payment of owelty money ordinarily creates a lien by implication of law on the property taken on partition. Such charge remains implied and not because the same is expressed in the decree; and (3) the costs of the partition proceedings have been directed to be borne and paid by the parties in proportion to their shares on partition. The costs have not yet been taxed. The plaintiff has one-third share and the defendants jointly have two-third share. The plaintiff having bad the carriage of proceedings find spent more than one-third of the costs and upon adjustment would be entitled to large sum from the defendants. If credit is given to the plaintiff for the sum to which he would be entitled upon taxation of costs in partition proceedings, the plaintiff is ready and willing to pay the balance if any, to the defendants.;