The distinction between the modes of execution under Section 51 (b) and Section 51 (d) of the Code of Civil Procedure, 1908, and the circumstances in which a receiver may be appointed in execution.

( 1 ) THIS is an appeal by the defendant judgment-debtor Messrs. Thacker's Press and Directories Ltd. , from an order, dated September 7, 1961, of our learned brother, G. K. Mitter, J. , appointing, it is said, a receiver in execution.

( 2 ) THE answering respondent in this appeal is the Metropolitan Bank Ltd. , hereinafter referred to as the Bank. On September 6, 1957, the Bank instituted a suit against the appellant and one Murari Mohan Chatterji, the other and non-appearing respondent in this appeal, for recovery of Rs. 6 lakhs and odd. On March 14, 1958, the suit culminated in a consent decree against the appellant for Rs. 10 lakhs, payable by monthly instalments, spread over 20 (twenty) years, - Rs. 4375/- a month from January, 1959 to December, 1978, the last instalment being of the final and reduced amount of Rs. 2,500/ -. In the decree, there were provisions inter alia for rebate on punctual payment and for interest in case of defaults. The decree aforesaid also declared a charge on a lease-hold and certain publications and machineries, plants, etc. , all listed in the schedule to the terms of settlement, forming part of the decree itself. This was done on the footing of a deed of hypothecation, dated October 25, 1952, and a deed of mortgage, dated July 26, 1955, with this limitation that the deeds would not run beyond the properties, just referred to above. In other words, the charge was to be 'only on the properties as mentioned in the schedule, referred to above and annexed thereto' as the third clause in the relevant terms of settlement puts it.

( 3 ) THE appellant defaulted in paying instalments : not one, not two, but so many as twenty three, and from the very beginning, namely, from January, 1959, the first instalment having been payable by January 31, 1959, and the twenty-third by November, 1960. That led the Bank to levy execution on December 22, 1960, for twenty three monthly instalments of Rs. 4375/- each, coming up to Rs. 1,00,625/- in all, Clause 5 of the terms of settlement entitled the Bank to apply for execution for recovery of the aforesaid unpaid instalments. The mode of execution, sought for, was appointment of a receiver 'to sell the assets or sufficient part thereof', charged for payment of the decretal amount. Clause 5 of the terms of settlement also entitled the Bank 'to get a receiver in execution' but of the charged lease-hold only, for letting it out, collecting rents, etc.

( 4 ) UPON the above application, G. K. Mitter, J. , passed the order, dated September 7, 1961, which is the subject matter of this appeal. That order provides

inter alia, - (a) Mr. O. Ahmed is appointed, in execution of the decree, a receiver (without security) of the publications, machineries, plants, etc. , charged properties all and specified in the schedule to the order. (b) The appellant 'and all persons, claiming under it' do deliver up quiet possession thereof along with all concerned books, registers, etc. , to Mr. Ahmed, who do take possession thereof too. (c) Mr. Ahmed do have the power to bring and defend suits. (d) Mr. Ahmed do sell the two varieties of the charged properties; (1) publications and (2) machineries, plants, etc. , - of which alone he is appointed the receiver, - for repayment of the decretal dues so as to cover the claim of Rs. 1,00,625/- for the recovery of which the Bank came to Court in execution.

( 5 ) THE appellant challenges the propriety of this order and contends that it is contrary to law and should be set aside and the appointment of receiver should be recalled and the receiver should be discharged. The validity of this contention has to be carefully examined for deciding this appeal.

( 6 ) BEFORE, however, we proceed to the merits, we would dispose of two preliminary points, raised by the learned Standing Counsel, appearing for the Respondent Bank, as pleas in bar against the appellant. These preliminary points are by way of demurrer, the first urging that the point under Section

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