KRISTA CHANDRA GHOSE Vs. KRISTA SAKHA GHOSE

JUDGEMENT

(1.) The Advocate General appears on behalf of the lessee Rajah Benoy Krista Deb, to whom the Receiver has leased the property, the subject of this application, and takes a preliminary objection that this application cannot be entertained and that the lease having been already executed, no summary order can be passed such as is asked for here. On the other hand, reliance is placed upon cases, in which the parties were allowed to appear pro interesse suo; but these cases do not apply, because there the question arose on the application of third parties aggrieved by the Court's action through its Receiver, and the Court grants such an application by reason of the control it necessarily has over its Receiver's action. This is not a case of that kind. I am not asked in this matter to control the action of the Receiver, because Receiver has already done that which is complained of and has conveyed the property into the hands of the lessee, a third party, to whom the Receiver, under the order giving him authority to do so, granted a lease, which has been completed and under which possession has been given. Admittedly, in this case, the lessee is also a party to the suit; but though he is subject to the jurisdiction of the Court as a party, he is not subject to its jurisdiction as lessee. This is not a case in which the matter rests on an agreement, which has not been carried out, and in which the Court may interfere to prevent its Receiver giving effect to the proposed agreement. This is a case, in which the matter has passed out of the stage of agreement, and has resulted in a conveyance of the property to the lessee. As long as that lease stands, the property must be taken to be in the lessee, and I do not think that I can, on this application, set aside that lease.

(2.) The course open to the applicant appears to me to be by proceeding by suit against the Receiver, and also, if it is alleged that the lease was granted and obtained by collusion, against the lessee. In the case cited, Surendro Keshub Roy V/s. Doorgasoondery Dossee 15 C. 253 the Court was asked to control the action of the Receiver and to enforce the applicant's right to have a lease, for which a contract had been entered into; and in the English cases therein cited, the matter still rested on contract and an order was made directing enquiry as to damages against the lessee, who had repudiated the contract, and in the other case, the Receiver had parted with money without the authority of the Court and so the Court's money was ordered to be paid back. But here, unless the lease is set aside, the interest is not that of the Court, or of the parties, but of the lessee.

(3.) Under these circumstances, the application appears to me to be not entertainable and must be dismissed.