HUMAYAUN RAZA CHOUDHURY Vs. SURENDRA NATH BOSE

JUDGEMENT

(1.) MR. De's argument is based on the contention that the Judge has deprived the petitioners of something which in law they were entitled to. It is quite clear that in certain oases at any rate application for leave to sue a Receiver is necessary on the assumption that the Receiver being the Officer of the Court, the action would interfere with the possession granted to the Receiver by the Court and therefore the plaintiff in such an action would be guilty of contempt. That is true in those actions the result of which would tend to displace the possession of the Receiver. It is not seriously argued, although perhaps a suggestion made by the Court and taken up by MR. De, that no leave to sue is necessary if the petitioner is advised that that is the position in law, then there is nothing to prevent his bringing an action and risking it being stayed if the advice received is wrong. But the case, as I have indicated, has been argued on the assumption that leave to sue is necessary, although, as I have already stated and repeat, the Judge has restricted that right. Once it is admitted that leave was necessary, then the whole argument falls to the ground because the learned Judge here has given the plaintiff leave to sue which, apart from the order of the Judge, he had no right to do. If the matter is taken from that point of view, what has happened is that the order of the Court has extended the rights of the plaintiff and therefore it cannot be said that his rights have in any way been limited, or to put it in other words, if it is necessary to apply for leave, the petitioner cannot complain if the Judge makes that leave conditional. I have no doubt in my own mind that if it was necessary to apply for leave, the Judge's order was quite within his jurisdiction. For these reasons I think the Rule must be discharged with costs: hearing fee two gold mohurs.