NANDA LAL BANERJI Vs. JOGESH CHANDRA BANEEJI

JUDGEMENT

(1.) This case provides a sad commentary on how dilatory proceedings in our courts help designing persons. Nandalal Banerji, the present Appellant before us, filed a suit in 1939 against his two brothers Jogesh Chandra Banerji and Suresh Chandra Banerji with regard to what was alleged to be an absolute debater and prayed therein for removal of those two Defendants from the office of shebaitship, for the framing of a scheme for the management of the debater, for the appointment of a receiver 'pendente lite and for taking accounts from the Defendants Nos. 1 and 2 as regards the amounts received by them. The matter was referred to arbitrators and a decree was passed in accordance with the award of the arbitrators. One of the terms of the award was that a scheme of management as set out in the award will come into operation as soon as a decree was passed. In that scheme of management, it was provided that, so long as there will remain any debts of the debater estate, Nandalal Banerji will alone manage the whole estate and will perform all the religious duties and will submit yearly accounts which will be checked and passed by the court after hearing objections. It was provided further that he, as receiver, will alone perform all the duties of an administrator of the estate, will be entitled to pray for and obtain directions and permission of the court whenever necessary and will possess all the powers under Order XL, Rule 1" Code of Civil Procedure, and will be entitled to bring and defend all suits on behalf of the deity without any express permission therefore. On January 19, 1949, the Defendant No. 1 made a prayer to the court for directing the receiver to restore to him the possession of the portion of the premises No. 51, Joy Mitra Street, Calcutta, which had been vacated by him. This application was opposed by the receiver and on March 28, 1949, the court passed the following order:

(2.) While passing the order, the learned subordinate judge observed that it was most unfortunate that, without receiving a specific order from the court, the receiver had inducted his own sons as tenants of the premises.

(3.) Instead of carrying out the directions of the court as mentioned above, the receiver moved this Court against that order and obtained on April 11, 1949, an order from this Court staying the operations of the directions passed by the learned subordinate judge. That Rule was, however, finally discharged on December 21, 1949. Thereafter, on January 4, 1950, the receiver informed the court that, though notice had been issued on his sons for making over possession of the house to Jogesh Chandra Banerji, the sons had refused to make over possession. There was then an application by the Defendant No. 1, Jogesh, that he should be appointed special receiver for the purpose of taking proper steps for restoration of this portion of premises No. 51, Joy Mitra Street, and the receiver, Nandalal Banerji should be directed to put him in sufficient fund for taking a litigation. That application was allowed by the court below by its order dated February 22, 1950. The receiver filed an appeal against the order passed by the court below and also filed an alternative application for interference by this Court with the order under Section 115 of the Code of Civil Procedure in case it was found that no appeal lay.