Civil Appeal Nos
1256 1258 of 1981
451 Appeals by Special Leave from the Judgment and Order dated 991980 of the Calcutta High Court in Appeal Nos 94 122  95 of 1980 respectively
SN Kacker and HR Puri for the Appellant
Shankar Ghosh BP Maheshwari and Miss Asha Jain for Respondent No 1
Dalip Sinha GS Chatterjee and PK Chatterjee for Respondent No 2
The Judgment of the Court was delivered by DESAI J
Ms Jethabhai Khatu  Co a partnership firm is the appellant in all the three appeals
The respondents in all the three appeals are 1 Luxmi Narayan Cotton Mills Ltd an incorporated Company  company  for short 2 State of West Bengal 3 SK Dutta who was for some time a receiver appointed by the High Court 4 Grindlays Bank  Bank  for short having a fixed deposit account in the name of Receiver
SK Dutta on behalf of Luxmi Narayan Cotton Mills Ltd 5 AK Dutta and 6 RC Deb who claim to have been appointed as joint receivers after removal of Sh
SK Dutta
Appellant filed suit No 119466 against the company on the original side of the Calcutta High Court to recover a certain amount due under two separate heads
By the time the suit came up for hearing the board of Directors of the 1st respondent company was superseded and one Gurudas Sharma was appointed as an Administrator
The Administrator on behalf of the 1st respondent company entered into a compromise with the appellant in respect of the claim in suit of the appellant and after obtaining leave of the Court to settle the matter invited a consent decree by which the company was held liable and directed to pay Rs 285000 with interest thereon at 6 per annum from January 6 1970 the date of the decree till realisation
The Ist respondent company was given an option to pay the decretal amount by monthly instalments of Rs 5000 the first instalment becoming due and payable on March 15 1970 and each subsequent instalment to be paid by 15th day of the next succeeding month
The default clause in the consent decree provided that if the company committed default in payment of any two instalments within the time stipulated in the decree the whole of the decretal amount and the interest on the balance of the decretal 452 amount will become due and payable at once
It appears that the Ist respondent company received Rs 1500000 from the Custodian of Enemy Property in respect of its cotton Mills situated in Narayanganj Bangladesh
The 3rd respondent SK Dutta appears to have been appointed a receiver in respect of this compensation amount and he appears to have deposited Rs 840000 out of the compensation amount in fixed deposit account evidenced by receipt No1002 2539 with the Bank at its Netaji Subhash Road Branch Calcutta
The appellant by an order dated April 5 1978 of the Calcutta High Court obtained leave to execute the decree by attachment of funds lying in the hands of the 3rd respondent receiver SK Dutta Annexure D 
By the date of the order Rs 42070294 p had become due and payable under the decree
Pursuant to this order an interim attachment was levied under order 21 Rule 52 CPC
On the amount covered by the aforementioned fixed deposit receipt and accordingly the Master of the Court Shri SK Ghosh informed the 3rd respondent receiver by the writ of the Court dated April 12 1978 that the receiver shall hold the money under the fixed deposit account subject to such order as may be made respecting the same in the suit in which he had been appointed a receiver and subject to further orders of the Court Annexure E 
The Master confirmed the interim attachment by his order dated April 24 1978 Annexure F 
On May 4 1978 upon a petition by the appellant the Court directed the receiver 3rd respondent to pay the sum of Rs 42070294 to the appellant decree holder out of the amount in the fixed deposit account of the judgment debtor with the Bank in fixed deposit receipt No 1002 2539 standing in the name of the receiver which was attached in terms of order dated April 12 1978 as confirmed by the order dated April 24 1978
Presumably neither the 3rd respondent receiver nor the Bank effectively implemented the order dated May 4 1978 whereupon the appellant moved the Court during the vacation on May 24 1979 for an appropriate direction and a learned single Judge of the Calcutta High Court working as vacation judge gave the directions prayed for
As this order has some legal consequences in this matter it would be advantageous to extract it
It reads as under There will be an order in terms of prayers a  b of the petition
Prayer a That the receiver Sudhir Kumar Dutta be forthwith directed to instruct and intimate to the Grindlays Bank Ltd Netaji Subhash Road Branch Calcutta to pay 453 a sum of Rs 42970294 p to the petitioner decree holder in terms of the payment order dated 4th May 1978 out of the amount of the Fixed Deposit of the judgment debtor with Grindlays Bank Ltd in Fixed Deposit Receipt No 1002 2539 which has been Lying attached in terms of the order dated 12th April 1978 and is confirmed by the order dated 24th April 1978 and the said Grindlays Bank Ltd Netaji Subhash Road Branch Calcutta be directed to pay the said sum of Rs 42070294 p to the petitioner decree holder Prayer b That Grindlays Bank Ltd Netaji Subhash Road Branch Calcutta be directed to pay the said sum of Rs 42070294 p to the petitioner decree holder in terms of the payment order dated 4th May 1978 out of the said fixed deposit receipt No 1002 2539
 Effectively this order of the Court directed the receiver to pay the amount therein mentioned to the decree holder and the Bank the keeper of the fixed deposit account of the receiver was also put under an obligation not to raise any objection on receiver withdrawing the money and paying the same to the decree holder
In fact upon its true construction the Bank was also under an obligation to take effective steps to pay the amount mentioned in the order to the decree holder
It appears that these directions were not obeyed
Consequently the appellant moved the Court for holding the 3rd respondent receiver SK Dutta and the 4th respondent Bank in contempt and for passing appropriate order for punishing them for contempt unless they purged themselves of the contempt
On June 7 1979 when the petition for taking action against the alleged contemners came up before the Court respondents 5 and 6 appear to have been appointed as joint receivers
The Bank appeared through its counsel Mr Majumdar and the joint receivers appeared forth themselves as well as for their respective clients namely 1st respondent company and the 2nd respondent State of West Bengal
Mr Majumder learned advocate for the Bank undertook to the Court to comply with the order dated May 24 1979 to pay the amount therein mentioned to Ms Maharia  Co Advocate on record for the appellant
The court directed that on such payment being made the Bank shall be absolved from all the liability in respect of the said amount
The Court specifically noted that in view of the undertaking given by the learned advocate on behalf of the 454 Manager of the Bank the Court was not inclined to pass any order in respect of the contempt application and the application for taking action in contempt was accordingly disposed of
At this stage
Mr AK Dutta appearing for the Ist respondent company prayed for stay of a portion of the order of the Court which prayer was specifically refused observing that as no fresh orders have been passed on that day affecting the interests of the said Company no question of granting stay of a portion of the order arises
The Court specifically directed that all the parties and particularly the Manager of the Bank should act on the signed copy of the minutes
It appears that the solemn undertaking given by the Bank was not acted upon
Probably soon thereafter some interim orders were obtained as would transpire from the order of Mrs Padma Khastgir J dated March 7 1980
When the matter came up on March 7 1980 the court observed that there will by no order on the applications before it save and except that the receiver will hold the balance sum of Rs 41969706p till further order of the Court
The Court also declined to grant prayer for discharge of the receiver SK Dutta the 3rd respondent because notice of the application was not served upon him
This observation would however establish that till March 7 1980 the 3rd respondent was not discharged as a receiver though from the recitals in the order dated June 7 1979 it appears that by that date AK Dutta and RC Deb were functioning as joint receivers
In this order it was distinctly made clear that except what is stated the specifically in the order all interim orders were vacated
However the Court at the instance of joint receivers stayed the portion of the order dated March 7 1980 for a period of a fortnight
To clarify the position it may be mentioned that when the Court directed that balance of Rs 41969706 will be held by the receiver it would imply that would be the balance after payment of the amount directed to be paid to the appellant
Specifically this order has the effect of confirming the earlier order dated May 24 1970 to pay the decretal amount to the appellant
If appears that thereafter three appeals came to be filed before the Division Bench of the Calcutta High Court
Appeal No 9580 and Appeal No 9480 were preferred by the Ist respondent company
Appeal No 12280 was preferred by the 2nd respondent State of West Bengal
These three appeals were preferred against the order dated March 7 1980 made by Mrs Padma Khastgir J
In the two appeals preferred by the Ist respondent company a Division Bench of the Calcutta High Court by its order dated 455 March 27 1980 granted ad interim stay as under The Joint Receivers RC Deb and AK Dutta are directed not to part with any money lying deposited under the fixed deposit receipt No 10022529 in the Grindlays Bank
There will be an order directing the Grindlays Bank Ltd of 29 Netaji Subhash Road not to disburse any amount in respect of fixed deposit No 1002 2539 standing in the name of SK Dutta the fixed deposit receipt whereof is Lying deposited with the present joint receivers RC Deb and AKDutta 
Order of injunction restraining Jethabhai Khatau and Co from obtaining any payment out of the moneys lying in the Grindlays Bank and held by the joint receivers or receiver
 This interim order was confirmed by the Division Bench by its order dated September 9 1980
Hence these three appeals by special leave
Frankly this Court ordinarily does not interfere with interim orders unless and until manifest injustice convulsively shakes it
Even then with our usual response of reluctance to undertake to examine interim orders only a notice to show cause why special leave should not be granted and the interim stay application not be considered was issued to the respondents
After notices were served and counter affidavits and rejoinder affidavits were filed this matter came before us about four weeks back our hands off attitude to interim orders manifested itself when we adjourned the matter for four weeks indicating to the parties especially the respondents who are appellants before the High Court to take executive steps to get their appeals placed on the cause list for hearing and to move for expeditious disposal of the same
We also declined to grant any interim relief
We so adjourned the matter in the fond hope that we may hang on to our tenuous view that ordinarily we would not undertake to deal with interim orders
Our hope has proved a mirage
When this matter was listed before us on April 3 1981 Mr Kackkar learned counsel for the Appellant stated that almost within the dying embers of the time granted by this Court an attempt was 456 made by the respondents to get their matter listed in the High Court and the only order that the court has made is that the appeals be added to the cause list of the Division Bench and it would be anybody s guess when this last added matter would reach hearing
Having no alternative left open to us we have heard the matter
As the appeals are pending before the Division Bench of the Calcutta High Court and are to be heard on merits we would make every manageable human effort to avoid any expression of opinion which may even remotely interfere with judicious adjudication of the issues before the Division Bench
However we make it clear that even if there is any express or implied opinion discernible in this order the same has to be wholly ignored by the High Court while disposing of the appeals on merits
With this extra caution we proceed to dispose of these appeals
As every stage of the proceeding has been neatly delineated by us with the orders of the Court referred to in details the permissible inferences may alone be set out
What is the injudicious situation which may bring disrepute to judicial process stares in the face
The consent decree under which appellant was entitled to recover Rs 285000 with interest at the rate of 6 per annum from the date of the decree till realisation was made by the Court on January 6 1970
The decree without being satisfied in its minutest part has collected dust for 11 years
And at present who is impeding the execution of the decree  It is the 1st respondent company which has been a party to the consent decree and which decree has become final and unassailable
There is no proceeding at precent questioning the correctness validity or legality of the decree or its binding character on the 1st respondent company
It is again incontrovertible that the judgment debtor Ist respondent company has in its fixed deposit with the 4th respondent Bank a sum of Rs 840000
That his amount is of the ownership of the judgment debtor is not in dispute
3rd respondent SK Dutta was once a receiver
Respondents say that he has been removed and respondents 5 and 6 who are respectively the Advocates of the Ist respondent company and the 2nd respondent State of West Bengal claim to be appointed as joint receivers
The date of appointment is not made clear but the order dated March 7 1980 Annexure J  by Mrs Padma Khastgir J leaves no room for doubt that till that date 3rd respondent SK Dutta was not discharged as receiver
457 The High Court on a petition of the appellant levied attachment under order 21 Rule 52 CPC
On the amount Lying in fixed deposit account with 4th respondent Bank in the name of 3rd respondent SKDutta as receiver of the first respondent company by order dated April 5 1978
This attachment order was levied by the Master of the Court and the interim attachment was confirmed
Admittedly these orders were not challenged
Sabyasachi Mukerjee J by his order dated May 4 1978 directed 3rd respondent SK Dutta to pay the amount of Rs 42070294 P Out of the amount Lying in fixed deposit receipt No 1002 2539 with the fourth respondent Bank to the appellant in satisfaction of the decree
This order may appear to have become final as not having been questioned by any one
Manoj Kumar Mukherjee J by his order dated May 24 1979 directed 3rd respondent SKDutta receiver of the Ist respondent company to pay Rs 42070294 p
Out of the fixed deposit account held by him as receiver of the Ist respondent company to the appellant and a consequential order was made directing the Bank to pay the amount set out in the order to the appellant
This order dated May 24 1979 may appear to have become final as it appears not to have been questioned challenged or appealed by any one
Failure to comply with the court s mandatory direction led the appellant to file a petition for contempt
The alleged contemners impleaded were Ist respondent company and the 4th respondent Bank
When this petition for taking action in contempt came up before Manoj Kumar Mukherjee J there appeared on the scene one Mr Majumdar learned counsel for the 4th respondent Bank as well as the two joint receivers functioning in dual capacity as joint of receivers as well as learned counsel for the respective clients namely Ist respondent company and the 2nd respondent State of West Bengal
At the hearing of this motion for taking action for contempt Mr Majumdar learned counsel for the 4th respondent unreservedly agreed to comply with the order of the Court on May 24 1979 which means that he agreed and undertook to pay the amount of Rs 42070294 out of the fixed deposit account in the name of 3rd respondent SK Dutta receiver of the Ist respondent company
It is because the Bank agreed unreservedly and unconditionally to pay up the amount that the motion for taking action in contempt was discharged by the Court
No action was sought to be taken against the joint receivers who had interposed themselves in the meantime
Therefore the court declined to accede to their request to stay a 458 portion of the order
The order dated June 7 1979 is not a fresh order on merits
It was merely an implementation of the order dated May 24 1979 which may appear to have become final and binding
Yet the 1st respondent company and the 2nd respondent State of West Bengal took no further action and surprisingly the Bank also joined hands with them by not paying the amount till March 7 1980
Maybe there may be some interim orders
We are not made knowledgeable about the nature and character of those interim orders save and except what has been recited in the order dated March 7 1980 of Mrs Padma Khastgir J However there seems to be some apparent collusion between the company on one hand and the joint receivers in not complying with the court s order dated May 24 1979 even though action for contempt was avoided by giving an unconditional undertaking to carry out that order
The three appeals were preferred against the order dated March 7 1980
That order has nothing to do with order dated May 24 1979 or the order dated June 7 1979
At any rate the order dated May 24 1979 may appear to have become final
Would it be appropriate in such circumstances to grant an interim stay of the portion of an order which may appear to have become final in an appeal against an altogether different order Mr Shankar Ghose learned counsel for the respondent wanted us to take note of various allegations against the 3rd respondent the receiver the fact that he was removed the fact that he was colluding with the appellant and that he was negligent as also that he was discharged at some stage of the proceedings
At this stage these contentions in our opinion are not very relevant
Maybe there is merit in these contentions
Maybe the Division Bench hearing the appeals by the Ist and 2nd respondent will examine these contentions on merits
The only live issue is whether would it be fair while granting stay of the order dated March 7 1980 to effectively stay the order dated March 241979 which appears not to be under appeal though its validity may be questioned in the course of hearing of the appeal If that be so could the Court overlook attempt of the Ist and 2nd respondents to circumvent the order by obtaining an interim stay in such manner that an order not under appeal gets frozen  It is therefore that we propose to interfere with the interim order made by the Division Bench of the Calcutta High Court on September 9 1980 confirming the ad interim order dated March 7 1980 to a limited extent so that an impression that the court s process can be lightly trifled with may be avoided
459 Under the circumstances the proper thing to do would be to set aside the interim stay order dated March 27 1980 as also the order dated September 9 1980 confirming the interim order but in order to ensure the resultant justice as we are interfering with an interim order we consider it proper to give certain directions while restoring status quo ante in the event the appeals filed by respondents 1 and 2 are allowed or any specific positive direction is given by the court in this behalf
We accordingly allow these appeals and set aside the orders made by the Division Bench on March 27 1980 and September 9 1980
The result would be that the order dated May 4 1978 by Sabyasachi Mukherjee J and order dated May 24 1978 made by Manoj Kumar Mukherjee J as also the undertaking given by the manager of the 4th respondent Bank through his learned counsel Shri Majumdar before Manoj Kumar Mukherjee J On June 7 1979 would be revived and would be effective and will have to be implemented
In pursuance to the aforementioned two orders the 4th respondent Bank will have to pay Rs 42070294 p to the decree holder appellant towards the decretal amount
On receipt of the amount the appellant shall pass a receipt acknowledging receipt of the amount and to the extent of the payment of the amount herein indicated the liability of the 4th respondent Bank to the Ist respondent company or anyone claiming on its behalf or the 3rd respondent receiver shall stand discharged
Before the amount is paid the appellant shall give security to the satisfaction of the High Court and also an undertaking on affidavit to the Division Bench of the Calcutta High Court before which the appeals preferred by the Ist and 2nd respondents are pending that in the event the appeals are allowed which makes it consequently necessary for the appellant to repay the amount received from the 4th respondent Bank in payment of the decretal amount the appellant shall deposit the said amount with the Calcutta High Court within one month from the date of the order of the appellate Bench
The appeals will stand disposed of as herein indicated with no order as to cost
NVK Appeals allowed


Summary:
The appellant filed a suit for recovery of certain amounts due from the first respondent company
By the time the suit came up for hearing the first respondent company was superseded and an Administrator was appointed
The suit was compromised and a consent decree was passed the company being held liable and directed to make payment of Rs 285 lakhs with interest at 6 from the date of the decree
The first respondent company received a sum of about Rs 15 lakhs from the Custodian of Enemy Property as compensation in respect of certain Cotton mills owned by it
The third respondent was appointed a receiver in respect of this amount and he deposited a sum of Rs 8 lakhs of the compensation amount into a fixed deposit account with a Bank
The decretal amount having become due and payable the appellant by an order dated April 12 1978 obtained an interim attachment of the money in the fixed deposit account of the bank which was confirmed by order dated April 24 1978 on May 4 1978 upon a petition by the appellant the Court directed the receiver 3rd respondent to pay the decretal amount to the appellant out of the amount in the fixed deposit account of the judgment debtor with the Bank
As this order was not implemented the appellant again moved the Court and by its order dated the May 24
1978 the Court directed the receiver to pay the amount to the decree holder and the Bank the keeper of the fixed deposit account of the receiver was also put under an obligation not to raise any objection on the receiver withdrawing the money and paying the same to the decree holder
These directions not being obeyed the appellant moved the Court for holding the third respondent receiver and the fourth respondent Bank in contempt and for passing appropriate orders for punishing them for contempt
Respondents 5 and 6 were in the meanwhile appointed as joint receivers
A solemn undertaking was given by the Bank to the Court that the decretal amount would be paid
In view of the undertaking the Court did not pass any orders on the contempt application
On March 7 1980 the Court declined to grant the prayer for discharge of the receiver 3rd respondent and directed that the balance after payment of the decretal amount in the fixed deposit account will be held by the receiver
The Court however at the instance of the joint receivers Respondents 5 and 6 stayed the order for a fortnight
450 Three appeals were filed against the order dated March 7 1980
Two appeals were preferred by the Ist respondent company and one appeal was preferred by 2nd respondent State of West Bengal
In the appeals preferred by the Ist respondent company the High Court by its order dated March 27 1980 granted ad interim stay in the matter by directing that the Bank would not disburse any amount in respect of the fixed deposit account and by issuing an injunction restraining the appellant from obtaining any payment
Allowing the appeals to this Court  HELD The order made by the Division Bench on March 27 1983 and continued on September 9 1980 are set aside
The order dated May 4 1978 and May 24 1979 as also the undertaking given by the Manager of the 4th respondent Bank through its Counsel on June 7 1979 would be revived and would be effective and will have to be implemented
The 4th Respondent Bank will pay the decretal amount to the appellant the appellant shall pass a receipt acknowledging receipt and the liability of the 4th Respondent company to the 3rd Respondent receiver shall thereupon stand discharged
Before the amount is paid the appellant shall give security to the satisfaction of the High Court and also an undertaking on affidavit that in the event of the appeals being allowed the appellant shall deposit the said amount with the High Court within one month from the date of the order of the appellate Bench
459 C F 2
This Court ordinarily does not interfere with interim orders unless and until manifest injustice convulsively shakes it
455 E In the instant case the interim order made by the Division Bench on September 9 1980 confirming the ad interim order dated March 7 1980 has to be interfered to a limited extent to avoid the impression that the Court s process can be lightly trifled with
458 H 3
Failure to comply with the Court s mandatory directions led the appellant to file a petition for contempt
The alleged contemners impleaded were Ist respondent company and the 4th respondent Bank
At the hearing counsel for the 4th respondent unreservedly agreed to comply with the order of the Court
It was because the Bank unreservedly and unconditionally agreed and undertook to pay up the amount that the motion for taking action in contempt was discharged by the Court
457 E H 4
The order dated June 71979 is not a fresh order on merits
It was merely an implementation of the order dated May 24 1979 which appears to have become final and binding
158 A 5
The three appeals were preferred against the order dated March 7 1980
That order had nothing to do with the order dated May 24 1979 or the order dated June 7 1979
At any rate the order dated May 24 1979 appears to have become final
458 D