TILOKCHAND Vs. NAWALRAM

JUDGEMENT

(1.) THIS is a revision by the defendants against the order of the learned District Judge allowing Tilokchand Motichand to withdraw the suit and according permission to Gulabchand Khasa, Umed-mal Vajing, Nawal Ram and Shankar-lal to conduct and prosecute the suit on behalf of all the creditors of defendant No. 1.

(2.) IT appears that Devichand, father of Tilokchand, and Maganmal, was a partner in the business of Roopchand Shantilal since about 1943 or 44. On 7th of February, 1947, he partitioned his entire property into two shares in favour of his two sons, Tilokchand and Maganmal. Devi-chand had on this date a number of creditors including Tilokchand Motichand. Accordingly, they instituted a representative suit on 8th of November, 1947, for themselves and for the benefit of all the creditors for a decla-raion that, the partition deed dated 7th of February, 1947, referred to above, was void qua the plaintiffs and all other creditors of Devichand. A notice was duly published in the Gazette inviting the creditors of Devi-chand to join as co-plaintiffs if they were so a vised. On nth of December, 1947, Umedmal, Gulabchand Khasa, Motiji and Magubai applied for being made co-plaintiffs and orders were passed accordingly in favour of all of them except Magubai. On 4th of August, 1949, Nawalram made a similar application. IT appears that, in the meanwhile, the debt due to Tilokchand Motichand was satisfied and accordingly, an application was presented on their behalf on 16th of August, 1949 for permission to withdraw the suit. This application was signed by Mr. Singhi, counsel for Umedmal and Gulabchand Khasa and by Mr. Kesrimal, counsel for Hemaji Motiji. On 18th of August, 1949,. however, an application was presented by these persons, supported by an affidavit, that their counsel had signed the application for withdrawal under a misapprehension and that accordingly, they were opposed to the withdrawal. The same day, Shankarlal applied for being impleaded as a co-plaintiff. IT was followed by Nawalram whose petition for being joined as co-plaintiff was still pending, that the withdrawal was fraudulent and should not be allowed. On 14th of September, 1949, however, an order was passed by the learned District Judge permitting Tilokchand, Motiji and Hemaji to withdraw from the suit but as regards the other persons, namely, Gulab Chand Khasa, Umedmal Vajing, Nawalram and Shankarlal, he came to the conclusion that they were entitled to join as plaintiffs in a representative suit and, therefore, conduct and prosecute it not only on behalf of themselves but on behalf of all the creditors of defendant No. 1.