RAMLAL SHEOLAL Vs. SETH JAMNADAS

JUDGEMENT

(1.) 1. The applicant had brought a suit against the firm which existed under the name of Khushalchand Gopaldas, and the defendants were described in the plaint in the following terms: The firm of Khushalchand Gopaldas at Nagpur owned by the family of D.B. Seth Ballabhdass under the managing proprietorship of Seth Jamnadas now represented by the Commissioner, Jubbulpore Division, being the Court of Wards, Jubbulpore, Tahsil and District Jubbulpore.

(2.) COUNSEL for the defendants and also for the Commissioner, Jubbulpore, objected to the frame of the suit, as a firm could not be sued through the Court of Wards since every suit against the property of the ward must be brought against the ward personally and the Court of Wards was the guardian ad litem for the suit. The property of Seth Jamnadas had been taken over by the Court of Wards before the suit was filed. The learned Additional District Judge held that the suit as filed was not maintainable and that Seth Jamnadas should have been sued personally through the Manager of the Court of Wards as his guardian. As the error was technical and no question of limitation arose, the Court held that the defect was one which could be remedied by an amendment of the plaint. This order was dated 5th October 1932. The plaintiff thereupon applied for amendment of the plaint, which was allowed.

(3.) THE plaintiff acquiesced in that order and made no application in this Court in respect of it as the defendants did, but carried out the direction without demur and accepting the position that the suit as framed was not maintainable amended the plaint. If the suit were wrongly framed and unmaintainable, any orders passed against the defendants are vacated automatically, and it was open to the plaintiff to apply for the renewal of these orders, which the Court was competent either to grant or to refuse. I observe in passing that even if the suit were to be taken as continuing from the date of the order before amendment, it was open to the Court to vacate either order on being satisfied that there was sufficient ground for doing so. The plaintiff did as a matter of fact renew his application for attachment before judgment and this the Court rejected. It is contended that the assurance given by the Commissioner, Jubbulpore, is entirely insufficient and is without value, and, on the assumption that it is given bona fide. It is argued that there can be no prejudice to the estate in allowing a certain portion of it to be attached before judgment. This argument ignores the express purpose of the order by which attachment before judgment is permitted. Order 38, Rule 5, Civil P.C., lays down that attachment before judgment may be permitted when the Court is satisfied that the defendant is about to dispose of the whole or any part of the property with intent to obstruct or delay the execution of any decree that may be passed against him.