RANENDRA NATH DATTA Vs. MUNICK LAL MITRA

JUDGEMENT

(1.) This is an application for variation and discharge of the report by the official referee on 30 August 1938, and that the petitioner's claim for over Rs. 8000 be allowed to the extent of two-thirds against the estate of Khokalal and Sourendra Nath Mitra, and similarly that the petitioner's claim of nearly Rs. 22,000 be allowed against the estate of Sourendra Nath Mitra. The reference was made in a suit by a creditor against Manick Lal Mitra, Samarendra Nath Mitra, Mukul Kumar Mitra and the official trustee who is trustee of the estate of the infant defendant Manick Lal Mitra, and also receiver of the Hooghly Mitters Estate including the shares of the minor. The order referred to was made on 10 August 1934. The order was for the taking of accounts and directed that advertisements should be published directing the creditors of Khokalal Mitra and Sourendra Nath Mitra to come in and prove their claims. The advertisements were issued, and the present applicant was one of the creditors who preferred a claim which was rejected. Two preliminary points have been taken as to whether this application lies. The report was filed on 21 February 1940. An application for discharge or variation of the report must be made by motion upon notice given within fourteen days from the filing of the report. Therefore, the time for the filing of the report and for giving notice expired on 6 March. On 19 March the present petitioner applied for leave to file an application to discharge or vary the report and that application was allowed by an order of 19 March. This application is opposed by the plaintiff in the suit. It is not clear what is the extent of the estate of Khokalal and Sourendra Nath, but it is possible that the estate will not be sufficient to meet the demands of all creditors and in that event there will be rateable distribution, and if the report were varied to the extent of allowing the claims of the present applicant, the plaintiff might suffer. Learned Counsel on behalf of the plaintiff contends that the report became confirmed on 6 March 1940 by effluxion of time under Rule 89 of Ch. 26 of the rules and orders of this Court on the original side. Rule 89 provides that an application to discharge or vary a certificate or report shall be made by motion on notice to be given within fourteen days from the date of the filing thereof, or within such further time as may be obtained for that purpose but in that case the notice shall mention that it has been given with the leave of the Court. An application for further time may be made by petition in chambers without notice.

(2.) This is the procedure adopted on this occasion. The application for further time was made by petition in chambers without notice and the time was enlarged. Rule 90 provides that "a report unless discharged or varied will be taken as conclusive evidence of the facts found therein." Rule 91 provides that where the facts are correctly stated in a certificate or report, questions of law may be raised at the hearing of the suit on further consideration. An application to discharge or vary a certificate or report as to such question need not be made.

(3.) Then comes It. 92 upon which Mr. Sinha relies. Rule 92 provides that a certificate or report after it has become binding will not be reopened, except on the ground of fraud, surprise or mistake, or such other special ground as may be allowed by the Court on an application to the Court by motion which may be granted on such terms and conditions as to costs and otherwise as to the Court shall seem fit.