N H MOOS Vs. ABDUL HUSAIN MULLA TYEBALLI

JUDGEMENT

(1.) This is an application in revision by Mr Moos, who was appointed Receiver by an order of the High Court for administering the estate of one Kadarbhai Issuji now deceased. The plaintiff filed a suit in the Small Causes Court, Bombay, against the heirs and legal representatives of the deceased owner of the estate. He added the Receiver as a party to the suit and obtained ex parte leave from the High Court to sue the Receiver. It should have been obvious that no relief could have been granted against the Receiver in a suit filed in the Small Causes Court. When the suit came up for hearing the Judge passed a decree against defendants Nos. 2 to 8, who were the heirs of the deceased, and dismissed the suit against the Receiver. The plaintiff then appealed to the Full Court, praying that the dismissal of the suit as against the petitioner might be set aside, and a decree for the amount claimed passed against him, The Full Court delivered judgment setting aside the order of dismissal and passing a decree against the Receiver as prayed.

(2.) That would appear at first sight to be a very strange decision on the part of the Full Court. The grounds for passing a decree against the Receiver are as follows :- The Receiver was sued with the leave of the Court which appointed him. He was a necessary party us plaintiff wanted the property in his possession, i.e., the assets in his hands to be made available for the satisfaction of his claim. The High Court in granting; leave must have considered this aspect of the case, and it ho is a necessary party, the suit as against him cannot be dismissed, The two cases of Jotindra Nath V/s. Sarfaraj (1910) 14 C. W. N. 653, and Banku Bihari Dev V/s. Harendra Nath Mukerjee (1910) 15 C.W.N. 54, are explicit authorities on the point, and they decide that when the Receiver is made a party after leave to sue him has been obtained, the suit as against him cannot be dismissed I; the property in his charge is directly sought to be affected.

(3.) Where a money suit is filed against the heirs of a deceased party, whose estate is in the hands of a Receiver, the Receiver has nothing to do with the satisfaction of the claim, and all that the Small Causes Court could do would be to pass a decree in favour of the plaintiff against the defendants, as the legal representatives of the deceased. The fact that the plaintiff obtained an ex parte order from the High Court granting him leave to add the Receiver as a party does not in any way affect the question whether the Court which hears the suit can grant relief against the Receiver. That question would have to be decided on the merits and clearly no decree could be passed against the Receiver, If the decree against the other defendants was not satisfied, and the plaintiff wished to execute against the estate, lie would have to go to the High Court for permission to attach the estate of the deceased in the hands of the Receiver.