BANS GOPAL SHEO NARAIN Vs. PKBANERJI

JUDGEMENT

(1.) This is defendants application in revision.

(2.) The applicant had entered into a contract with. Sham Behari Lal and Kunj Behari Lal, plaintiffs opposite parties, on 89 December 1939, for the purchase of twenty five bales of gunny bags. The date of delivery fixed in the contract was 25 January 1940. The applicants failed to take delivery of the goods contracted for with the result-that on 23 January 1943 the plaintiffs opposite parties filed a suit for the recovery of Rs. 2121 as damages for breach of contract. While the suit was pending the plaintiffs applied on 13 January 1944, for being declared insolvents. Before this application was granted, Mr. P.K. Bannerji, Official Receiver, was appointed an Interim Receiver of the properties of the plaintiffs by the insolvency Court on 15 January 1944. The 4 February 1944 was the date fixed for the final hearing of the suit. On that date the parties applied for time to file a compromise. No compromise was, however, filed but the suit was adjourned and 18 April 1944 was fixed for final hearing. On that date the plaintiffs remained absent while the defendants were present with the result that the suit was dismissed for default of the plaintiffs,

(3.) On 18 May 1944, the Interim Receiver filed an application for restoration of the suit under Order 9, Rule 9, Civil P.C., on the ground that the plaintiffs of the suit had colluded with the defendants in order to defraud the general body of the creditors, and he had had no information of the date fixed in the suit. The defendants applicants objected that the Interim Receiver had no right to apply for restoration. The case was adjourned, however, in order to await the result of the insolvency petition. The plaintiffs were ultimately adjudicated insolvents on 10th November 1944. The restoration application was then taken up for orders. The lower Court allowed it and the order dated 18 April 1944, dismissing the suit was set aside and the suit restored to its original number subject to the payment of Rs. 20 as costs. It is against this order of the learned Munsif that the defendants applicants have come up in revision to this Court.