SOURENDRA NATH MITRA Vs. JATINDRA NATH GHOSE

JUDGEMENT

(1.) This Rule was issued on the ground that the plaint doss not disclose a cause of action and, there-fore, the Court below oughts to have dismissed the application of the opposite party for leave to sue in forma pauperis. The plaintiffs ancestors mortgaged certain properties and in execution of the decree on the mortgage the mortgaged pro-parties were purchased by the predecessors-in-interest of the defendants. An application was made by the mortgagors to have the sale set aside under Section 244 of the old Civil Procedure Coda, which was dismissed. The present suit is brought in respect of certain subordinate tenures to the taluk which according to the plaintiffs ware never mortgaged. The plaintiffs case is that the property that was mortgaged and sold was the taluk and not the subordinate tenures. The only question, therefore, that I am asked to look into is if the plaint in this case discloses a cause of action under Order XXXIII, Rule 5. It is not necessary for me to go to the length of holding that if the plaint as a matter of facts, does not disclose a sufficient cause of action but if the Court below wrongly holds that it does, we have no jurisdiction under Section 115 to interfere with that order. Bat in this case the plaint discloses a cause of action, however weak it may be, according to the petitioners allegations and, therefore, it is not proper that we should interfere with the order of the Court below. Reading paras. 5 and 6 of the plaint together it appears that the plaintiffs case is that the property that was mortgaged was the taluk and what was sold was the taluk. The subordinate tenures were not sold at all. It further alleged that the interpolations in the sale proclamation were made presumably after the sale. If the plaintiffs succeed in proving these facts they cannot be mat by objection that the suit does not lie under Section 214 of the Code of 1832. If ail these questions are to be determined here as also the objections taken before us, it may very well be deciding the case. As I have observed, the allegations of the plaintiffs may be right or wrong but they do disclose a cause of action within the meaning of law. It is upon these allegations in the plaint that the Court below has observed that there is nothing in the evidence of the applicants themselves from which it can be held that the properties in dispute were, in fact, sold. In this view of the matter I decline to interfere with the order of the Court below,

(2.) The Rule is, therefore, discharged with costs three gold mohurs.

(3.) Let the record be sent down at once. Cuming, J.