S.A.Masud, J. - (1.) This is a glaring case where the travesty of justice has been caused by the act of the parties. By an award made by the Late Dr. Radha Binod Pal on 27th May, 1955, several persons were directed to pay a sum of Rs. 5,000 each to the petitioner Sm Santa Shila Devi. the relevant clauses of the said award read as follows: "10(a) That 1. Sri Dhirendra Nath Sen. 2. Sri Priya Nath Sen. 3. Sri Anandi Nath Sen. 4. Sri Jitendra Nath Sen. 5. Sri Satendra Nath Sen. 6. Sri Fanindra Nath Sen. 7. Sri Rabindra Nath Sen. shall each pay severally to Sm Santosila Debi the sums of Rs 5000 (five thousand) each (in all Rs. 35000) (thirty five thousand) in full satisfaction of her claim to the dividends from the New India Glass Works (Calcutta) Ltd., upto the close of the year 1945-46 as also in full discharge of her claim in respect thereof from the joint family. (b) That each of the seven brothers named above shall pay to Sm. Santosila Devi the amount thus declared payable by him in five equal quarterly instalments of Rs. 1000 each the first of such instalments falling due on the 1st September 1955. In case of default in the payment of any of these instalments interest on the defaulted amount at the rate of 6 per cent per annum shall be payable from the date of default. (c) That the above payments shall remain charged on the respective allotments of the seven brothers contained in paragraphs 2, 4 (a) and B of this award these charges having priority over the charges created in paragraph 16 below in favour of Sm Sovabati Sen." By a letter dated 1st September, 1955 addressed to M/s T. Banerjee & Co., Solicitors for Sm. Santosila Devi, Mr. Dwaipayan Sen. Solicitor on behalf of his clients Priya Nath Sen, Jitendra Nath Sen, Satyendra Nath Sen and Rabindra Nath Sen. sent a sum of Rs. 4000 in cash being the amount of the first instalment payable by each of them at the rate of Rs. 1000/- each for payment to Sm. Santosila Devi in terms of the said award. On the same day T. Baner-jee & Co. replied by stating that, as an application had been made for setting side the award, their instructions did not permit them to accept the said amount Similarly, a letter was written by the Solicitor for M/s Dhirendra Nath Sen and Phanindra Nath Sen on 2nd September 1955 tendering a sum of Rs. 2,002 in cash being the amount of the first instalment payable by each of them @ Rs. 1,000 each and Re. 1 each being the interest for one day to the said M/s T. Banerjee & Co. for payment to their client, Sm. Santosila Devi. On the same day by a letter. M/s T. Banerjee & Co. expressed their inability to accept the said amount in view of the petitioner's pending application. On the 22nd May, 1956 the petitioner's application to set aside the award was rejected and decree passed. On 28th of May 1956, Mr. Dwaipavan Sen on behalf of his clients, Dhirendra Nath Sen. Priya Nath Sen. Jitendra Nath Sen, Phanindra Nath Sen, Satyendra Nath Sen and Rabindra Nath Sen, sent a sum of Rs 18,000/- in cash to the petitioner's solicitor for payments to her. M/s T. Banerjee & Co. on the same day replied that they could not accept the money without the petitioner's instructions. On 31st May, 1956, another letter was written to M/s T Banerjee & Co. for accepting the said tendered sum of Rs. 18.000 to which there was no reply. On 29th of January 1957, the petitioner's appeal against the said decree dated 22nd May, 1956 was dismissed. On 18th of February 1957, a sum of Rs. 5,000 in cash was sent by the said Dwaipayan Sen on behalf of Satyendra Nath Sen to M/s T. Banerjee & Co; who held the said money in a suspense account. On the 13th of March 1957. M/s T. Banerjee & Co. returned the said sum of Rs. 5,000 on the ground that the petitioner instructed them not to accept the said sum. On 14th of June 1963, similarly a sum of Rs 5000 towards the claim against Dr. Jitendra Sen was sent to the petitioner's solicitors. On 27th June, 1963, a sum of Rs. 5,000 was tendered this time by the wife of Dr. Jitendra Nath Sen direct to the petitioner who again refused to accept the same. At last by a letter dated 13th February. 1967, M/s T. Banerjee & Co. on behalf of the petitioner sent a formal notice to M/s Dhirendra Nath Sen, Jitendra Nath Sen Satyendra Nath Sen, Phanindra Nath Sen and Rabindra Nath Sen for payment if the petitioner's dues under the award and also the accrued interest @ 6% per annum. It was also mentioned in the said letter that in default of payment, application for execution of the said award and decree would be made against them. Thereafter, this application was moved before A. N. Sen. J who expressed his desire not to hear the matter on personal ground. The learned Chief Justice has assigned this application to me for hearing.
(2.) It appears that the petitioner is moving this application only against M/s Dhirendra Nath Sen. Jitendra Nath Sen, Satyendra Nath Sen, Phanindra Nath Sen and Rabindra Nath Sen. Under the award dated 27th May 1955, each one of the said five respondents was to pay the instalment amount of Rs. 5,000 on 1-9-55. 1-12-55, 1-3-56, 1-6-56 and 1-9-56. The petitioner in the tabular statement has asked for appointment of a Receiver with respect to the respondents' share in the properties allotted to them under the award and for sale of their interest on the ground that the respondents have defaulted in making the payments under the award and that their respective interests in the properties allotted to them stood charged.
(3.) Mr. Ajoy Basu (with Mr. Harendra Kumar Ghose) on behalf of the respondents, has contended that in view of the facts that the money was duly tendered to the petitioner's solicitors and his clients were ready and willing to make the payment at all material times, there was no question of any default on the part of his clients. The petitioner herself has refused to accept the money tendered to her solicitor and the alleged default was caused by the petitioner's own conduct. Mr Basu has further submitted that his clients would not have opposed the petitioner's prayer but in view of the fact that she has taken extraordinary attitude in taking recourse to all kinds of proceedings civil and criminal, against his clients, he has no other alternative but to raise also a point of demurrer. According to him, this is a misconceived application. In a tabular statement, the petitioner has not asked for any general prayer like attachment or a receiver. She has specifically prayed for the appointment of a receiver and for sale of his clients' interests in 7/1, Short Street and 7, Rowdon Street, Calcutta on the basis that the petitioner has a charge on the said interests. According to him, even assuming that there was default on the part of his clients, the decree is only a money decree. The words expressed in the said Clause 10(c) are "the payments shall remain charged" and not the payments "remain charged." There is no automatic charge created under the decree. If it is held that the petitioner has a charge on the properties, the petitioner's only relief is to file a suit and get a decree under order 34, Rules 14 and 15 of the Code of Civil Procedure read with Section 100 and Section 67 of the Transfer of Property Act, 1882. In support of the said contention, reliance has been placed by him on Kanhaiya Lal v. Jangi, AIR 1926 All 527, Gobinda Chandra Pal v. Kailash Chandra Pal, 25 Cal LJ 354 = (AIR 1917 Cal 82(2)). Lastly, he has also contended that a charged property can only be sold without recourse to a suit only if there is a specific clause in the decree itself to the effect that such relief would be obtained by the creditor without instituting any suit, and in support of his contention he has drawn my attention to Kashichandra v. Priyanath Bakshi, 28 Cal WN 550 = (AIR 1924 Cal 645) and Postimal v. Radhakrishan Lalchand, ILR 54 All 763 = (AIR 1932 All 439).;