BAI SAKRI Vs. BAI DHANI

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent against a decision of Mr. Justice Weston holding that a receiver should be appointed pending the decision of an application for leave to sue as a pauper. Two points are taken by the appellant, who objects to the appointment of a receiver. The first is that a receiver can be appointed only when a plaint is before the Court, and the filing of a pauper application accompanied by a plaint is not the same thing as filing a suit. The second point is that, assuming it is not necessary for a suit to be before the Court, there must at any rate be some proceeding before the Court; and what is before the Court is not such a proceeding as is contemplated by Order XL, Rule 1.

(2.) AS to the first contention, it is to be noted that the present form of Order XL, Rule 1, differs from the older Section 503 in that the words "where it appears to the Court to be just and convenient" have been substituted for the words "where it appears to the Court to be necessary for the realisation, preservation or better custody, or management of property, moveable or immoveable, the subject of a suit or attachment. "it was however decided in an unreported case before this Court, Bai Chanchal v. Dalpatram Premchand (1935) A. O. No.31 of 1933, decided by Barlee and N. J. Wadia JJ. , on September 16, 1935 (Unrep.), that an application to sue as a pauper accompanied by a plaint did not in itself amount to a plaint. On the other hand it was decided in Totaram Ishharam v. Dattu Mangu (1942) 45 Bom. L. R. 231 that an application to sue as a pauper accompanied by a plaint did amount to filing a plaint in a suit, and it was pointed out not only that the decision of the Privy Council in Skinner v. Orde (1879) L. R. 6 I. A. 126 made that position fairly certain but also that the filing of an application in the form of a plaint which is taken on the file as a plaint commences the suit, and it would be a strange thing if a plaintiff who desired leave to sue as a pauper could not apply to prevent the defendant from making away with the property in suit until his application for leave had been disposed of. It is however not necessary for us to decide between these conflicting views, as we propose to decide the matter on the second point raised. We may however indicate a strong preference for the view put forward by Beaumont C. J. in Totaram's case.