HIRALAL MURARKA Vs. MANGTULAL BAGARIA

JUDGEMENT

(1.) In this case we have followed with the greatest care the argument of the learned Advocate-General who appears for the plaintiff-respondent and the point before us seems to be a very narrow one. The position however is that in my judgment the appeal should succeed. The plaintiff brings his suit for certain royalties due to the estate of one Popat Velji Rajdeo upon the terms of a mining lease. The plaintiff claims to be for this purpose entitled to represent that estate under an order dated 11 March 1927, which was an order made in an administration suit. In that suit, the heirs and the widows of the deceased were litigating as to the succession and the Court was asked for a more or less full order for administration of the estate of the deceased. The order in question of 11 March 1927, appointed the present plaintiff Mangtulal to be the Manager and it is in that capacity that he claims to be entitled to recover from the defendants whatever sums are due to Popat Velji Rajdeo's estate.

(2.) The point upon which the case turned was a point taken in one of the written statements from the beginning. It was shortly this: This very plaintiff Mangtulal Bagaria on 18 July 1924 applied to the learned Judge exercising jurisdiction under the Presidency Towns Insolvency Act and on 4 August 1924, obtained an order under Section 108 of the Act for administration of the estate of Popat. That order was obtained by him in his capacity as a creditor of Popat. He impleaded in those proceedings certain persons as being the legal representatives of the deceased. In their presence the matter was argued by Mr. Khaitan, attorney for the applicant, and by Mr. Chatterji, attorney for the legal representatives. The plaintiff satisfied the learned Judge that the case was within the section and the learned Judge pronounced an order of the character set forth in Section 108, an administration order under the insolvency jurisdiction. Now, it is not contended and it is not a matter subject to doubt that upon that order being pronounced and before it was drawn up the property of the debtor vested in the Official Assignee of this Court. The matter is no different than it would have been in the case of an order of adjudication and the position therefore was prima facie that the Official Assignee of this Court represented Popat's estate and no other person could claim to represent it. The order having been pronounced it was minuted according to the practice of this Court. When a receiving order is made upon a "judgment summons," or when an order is made by the Judge in Chambers on summons the English practice is that the Judge makes an endorsement of the order upon the summons itself. In this Court that practice is not followed but a minute of the order is made at the time and the fact that an order was pronounced in this case is not capable of dispute as we shall see in a moment that steps were taken and an order was drawn up.

(3.) The order as drawn up recited an affidavit of Mangtulal filed on the 30 July and it described Popat Velji Rajdeo as a person who died insolvent. It appears that the advisers of the legal representatives took exception to these passages in the draft and they applied to the learned Judge upon a proceeding which does not appear to be in writing. They applied to him orally, we are told, at his house during the vacation, but the statement of fact which we get from the plaintiff's own petition is that the application was an application to speak to the minutes of the order. Mr. Chatterji was instructed apparently to get the order drawn up without the particular passages objected to. He attended before Ghose, J., and the learned Judge when hearing the application at his house was, of course, attended by an officer of the Court whose duty it was to make a minute of any order which the learned Judge might make. The minute which was made by the Court's officer was this: The order for administration in insolvency made on 4 August 1924 is not to be drawn up by order of Ghose, J., till after the vacation when the matter will be mentioned to him.