S.M. Chundra Moni Dassee vs Mutty Lal Mullick and Others

Sale, J.—This is an application to enforce a charge created by a decree of this Court, dated the 4th January 1881. The charge was in respect of a sum of Rs. 50, which the Defendants by the decree were ordered to pay monthly to the Plaintiff. Subsequent to the making of the decree all the original Defendants, except one, have died, and their representatives have either been brought on the record or it is part of the present application to bring them on the record. As regards the portion of the application that the representatives of the deceased Defendant be brought on the record, there is no objection and that order can be made.

With regard to the payment of Rs. 50 a month, it appears that the Defendants have, up to a certain period, paid all that was due, but since the month of December 1896 there has been no payment to the Plaintiff. Demand was made in the month of March 1897 and subsequently a dispute arose between the parties as to certain alleged arrangements made between them subsequent to the date of the decree. The Defendants allege that the Plaintiff had agreed to accept the payment of Rs. 50 for each month, not in the succeeding months, but after the lapse of two months. They further allege that the Plaintiff agreed to accept payment from the Defendants in shares.

It seems to me impossible on the materials at present before me to decide whether there has been any default, and if so, to what extent, in paying the installments due by them. If the default had been admitted, or not disputed, there would, according to the original practice of this Court, have been two methods open to the Plaintiff for the purpose of enforcing payment. She might either have adopted the course referred to at page 336 of Belchambers'' Practice, and applied for an order in the nature of a decree for an account and sale or else have instituted a suit for the purpose of enforcing the charge.

My attention has been drawn to certain cases in ILR 22 Cal., Abhoyessury v. Gouri Sanker (p. 859) and Matangini v. Chooney Money (p. 903) the effect of which is to raise at least a question as to whether the practice referred to at page 336 of Belchambers'' Practice can now be adopted. No doubt the cases to which I refer are distinguishable in some important respects from the present case, and it may become necessary when the proper occasion arises to consider and determine the effect and hearing of these cases upon the procedure which undoubtedly has been adopted in this Court in respect of charges made by decrees on properties situate within the jurisdiction of the Original Side of this Court and which has been followed since the passing of the Transfer of Property Act.

But I think, having regard to the issues before me, it is impossible to direct a sale of the property charged by the decree in this suit except by a decree made in a suit instituted for that purpose.

As a matter of fact the Defendants have tendered the full amount of money due to the Plaintiff, so that the question now resolves itself into a question of costs.

I think it would be useless to burden the parties with further costs by setting the matter down for trial of issues on evidence, as I think, the Defendants'' affidavit which alleges that the parties have chosen to modify their rights under the decree by an arrangement between them is a sufficient answer to the Plaintiffs application; and having regard to the tender by the Defendants to the Plaintiff of the sum due to her, excluding the costs of the present application, the best course is to dismiss the present application leaving the parties if they intend to litigate the matter further to institute a suit. The application will be refused with costs.

Mr. Sinha.-Will we have to pay the 2 sets of costs-Costs in Chambers and the costs in Court?

Mr. Garth.-I don''t press for 2 sets of costs. The Court.-The costs will be the costs of the motion in Court.