BHAIRABENDRA NARAIN DEB Vs. UDAI NARAIN DEB

JUDGEMENT

(1.) The question involved in this Rule relates to security for costs, and arises in this way- The petitioner before us was the plaintiff No. 1 in a suit relating to succession to the Bijni Estate which is pending in the Subordinate Judge's Court at Alipore. The opposite party No. 1 was originally the plaintiff No 2 in the suit. The plaintiff No. 1 and the plaintiff No. 2 claimed the estate under different rights. It appears that there was an agreement between them that, in the event of success of the one, the other would participate in it. The suit was conducted jointly by both the plaintiffs until the 14 February 1922, when the plaintiff No. 2 transferred his interest to Prince Victor Nityendra Narain of Cooch Behar. Since then the two plaintiffs fell out. An application was made on behalf of Prince Victor Nityendra Narain to be substituted in place of the opposite party No. 1, which, however, was ultimately withdrawn. There were various other proceedings which need not be stated.

(2.) In September 1922, there was an application by the plaintiff No. 1 that he might be allowed to proceed with the suit and that the plaintiff No. 2 might be made a defendant. There was a similar application on the part of the plaintiff No. 2 that he might; be allowed to prosecute the suit, and the plaintiff No. 1 might be made a defendant. The question was decided in favour of the plaintiff No. 1, and the plaintiff No. 2 was transferred from the category of plaintiffs to that of defendants on the 19 September 1922. The concluding portion of the order was as follows : - "Considering all the circumstances of the case, I think I should give the conduct of the action to plaintiff No. 1 and make an order that the name of plaintiff No. 2 should be struck out, and added as defendant upon security being given by plaintiff No. 1 for the costs of the original defendants within six weeks from this date."

(3.) On the 26 October 1922 the plaintiff No. 1 applied for fixing the security. The principal defendants stated that the security for his costs should be for one lac of rupees, and the three other sets of defendants between them wanted security for another lac of rupees. The learned Subordinate Judge on the 3 January 1923 directed the plaintiff No. 1 to furnish security to the extent of Rs. 40,000 with liberty to the defendants to apply to the Court for increasing the amount of security. As against the orders of the 19 September 1922 and the 3 January 1923, the present Rule was obtained by the plaintiff No. 1.