B.Bhattacharya, J. - (1.) This appeal is at the instance of the defendant No.2 and is directed against Order No.55 dated June 7, 1997 passed by the Assistant District Judge, 4th Court, Alipore in Title Suit No.19 of 1992 whereby the learned trial Judge allowed two applications filed by the respondent No.1, one for injunction and the other for appointment of Receiver.
(2.) The aforesaid title Suit No.19 of 1992 was filed by the respondent No.1 against the appellant and opposite party Nos. 2 to 4 thereby praying, inter alia, for recovery of money and for enforcement of hypothecation and mortgage. The prayer portion and the schedule annexed to the plaint are quoted hereunder :- "(a) Decree for Rs. 8,99,793.56 against the defendants jointly and severally; alternatively as regards defendants Nos.3 and 4 an enquiry into their respective liability to the plaintiff and a decree against each of them for the sum found due on such enquiry; (b) Interest from February 16, 1992 till filing of the suit, interim interest and interest on judgment at 21 per cent per annum; (c) Declaration that the suit properties mentioned in Schedule-I hereunder remain hypothecated and those mentioned in Schedule-II hereunder remain mortgaged to the plaintiff for payment of the plaintiffs' claims herein; (d) Decree for sale and/or realisation of the suit properties mentioned in Schedule-I hereunder by public auction or private contract with liberty to the plaintiff to appropriate the net proceeds thereof in protanto satisfaction of the plaintiff's claims herein; (e) Decree under Order 31 Rule 4 of the Code of Civil Procedure 1908 in Form 5A of appendix-D to the First Schedule thereof or in any other Form or provisions of law as this learned court may seem fit and proper in respect of the mortgaged property mentioned in Schedule-II hereunder; (f) Receiver; (g) Injunction; (h) Costs; (i) Further any other reliefs as the plaintiff is entitled to in law and in equity". SCHEDULE -I Schedule of goods and Assets Hypothecated All that stocks of consumable goods both present and future book debts, other movable property etc. lying at the defendants business premises-12, Kailash Bose Street, Calcutta-6, and at 29, Sadananda Road, Calcutta-26. SCHEDULE -II Schedule of the Mortgage Property All that the piece and parcel of land with structure thereon situated at premises No.29, Sadananda Road, Calcutta-26 containing 880 sq. ft. covered areas in the western side of the ground floor having a common passage of 8 ft. wide consisting of three bed rooms, one study room, one drawing room, with dining space, one kitchen and two bath rooms, and the said premises is butted and bounded : By the North : Property of Sri Biswanath Ghosh & Ors. By the South : Property of Sri Nitai Das and Ors. By the East : Factory and after that Metro Railway. By the West : Sadananda Road."
(3.) The case made out by the respondent No.1 in the aforesaid suit was that the appellant as a partner of respondent No.2 took loan from the bank by mortgaging his immoveable property situated at Premises No 29, Sadananda Road, Calcutta 26 and hypothecated all stocks of consumable goods both present and future, and other moveable properties. The total claim of the respondent No.1 with interest calculated upto February 15, 1992 amounted to Rs. 8,99,793.55. In spite of demands the appellant and the respondents No.2 to 4 failed to pay the aforesaid amount. Hence the suit.;