BIPIN BEHARI BOSE Vs. MRKSBONNERJEE; LATE KUMUDINI DASI

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that a certain rent-decree dated the 13th February 1919, obtained by the defendant as Receiver against the, plaintiffs is invalid and inoperative. The defendant was appointed Receiver of the estate of Kumudini Dasi, one of the widows of Gopal Lal Seal, on the 7 January 1918. The defendant instituted a rent suit as Receiver. It is alleged that during the pendency of that suit, he was discharged as Receiver and thus unable to maintain and continue the suit, and that such discharge took place on the 28 January 1919. He was not, it is said, reinstated until the 17 February 1919, and that the decree passed in the rent-suit on the 13 February 1919 in favour of the Receiver is invalid. It is alleged that the Receiver purposely withheld this information from the Court, namely, that he was discharged, and thus induced the Court to believe that he was Receiver and he thus obtained a decree in his favour. It is said that the decree was secured by suppression of material facts and thus it was inoperative entitling the appellants to bring this suit to have it set aside. As I said, the Receiver is said to have been discharged on the 28th January 1919. On that date a settlement was arrived at in the suit of Gour Mohun Mullick v. Noyan Manjuri Dassi. In the 8 paragraph of that settlement it is stated "that the Official Receiver in this suit do forthwith make over possession of the estate in his hands to the Mullick parties with like notice as aforesaid except a pair of horses and an office Jaun which he is to make over to Babu Panna Lal Seal and that he be discharged and do pass his accounts."

(2.) This order is, it has been contended, a conditional order, because in the earlier portion of the order of the High Court discharging the Receiver it appears that the Counsel for the parties other than Srimati Noyan Manjuri Dasi undertaking that their respective clients shall produce to the Registrar of this Court affidavits from their respective wives stating that so long as this decree remains unreversed they will make no claim to the monthly sums referred to in Clause 10 of the terms of settlement hereinafter referred to.

(3.) There is no evidence before us, as the learned Judge has pointed out, which shows that this undertaking was carried out. We then find that there was an appeal, and on the 17th February 1919, an order was passed by the Appellate Court directing that the Receiver should retain possession of the share of Srimati Kumudini Dasi until the final determination of that appeal. The decree of the 28 January 1919 to which I have referred was not signed by the learned Judge until the 25 February. The decree was passed in the appeal in the High Court on the 4 April 1919, and after the date of the Appellate Court's decree on the 17 March 1920, an order was passed by this Court on the Original Side by which it was ordered that the Receiver of this Court and the Receiver appointed in this suit under the said order dated the second day of January one thousand nine hundred and eighteen of the estate of Gopal Lal Seal deceased, which was held by Srimati Kumudini Dasi deceased, and now in his possession do continue to act as such Receiver as aforesaid with all the powers conferred upon him by the said order from the said 4 day of April 1919 until further orders of this Court.