PUNYENDRA NARAYAN DEB Vs. BHAIRABENDRA NARAYAN DEB

JUDGEMENT

(1.) This Rule is directed against an order, dated 25-8-1945, made by the Subordinate Judge, First Court of 24 Parganas, rejecting an application of the petitioner for security from opposite party 1 under Section 4, Bengal Wills-and Intestacy Regulation (Bengal Regulation V

(5.) of 1799). The petitioner is the plaintiff in a suit filed by him in the Court of the First Subordinate Judge of 24 Parganas, being title Suit No. 42 of 1940, for a declaration of title to the properties appertaining to what is known as Bijni Rai Estate as the heir of late Raja Jogendra Narayan Bhup, and he has prayed for a further declaration that the Bijni Succession Act under which the opposite party 1 has been made the successor to Raja Jogendra Narayan Bhup is illegal and ultra vires and that the decisions in certain previous suits which held the Act to be a valid piece of legislation were not binding upon him and did not affect his rights. The suit is still pending and an application made by the petitioner for the appointment of a Receiver to the estate during the continuance of the suit has not been disposed of as yet.

(2.) On 18-11-1944, the petitioner filed an application supported by an affidavit, under Section 4, Bengal Wills and Intestacy Regulation, 1799, praying for a direction upon the opposite party 1 to furnish security for due compliance with the judgment that may be passed in the suit. This application was rejected by the Court below by its order, dated 25-8-1915. The learned Subordinate Judge has not said anything as regards the merits of the application, and he has rejected it solely on the ground that he has no jurisdiction to make an order under Section 4, Bengal Wills and Intestacy Regulation, 1799. It is the propriety of this order that has been challenged in this Rule.