NILKANTA GHOSE Vs. SWARNAMOYEE DASSI

JUDGEMENT

(1.) This is an appeal from the judgment of my learned brother Mr. Justine Greaves. I think, I may say at once that the judgment, judging from the terms of it, must have been given under some misapprehension, because the learned Judge seems to have bean under the impression that there was an order dismissing the plaintiff s suit. He says in the first paragraph of his judgment: "This is an application that the Receiver may be substituted as plaintiff in the records of the suit and that the order dismissing the suit and the decree dated the 23rd May 1919 may be set aside except as relates to the direction as to payment of the costs of Babu Pannalal Day and that the suit may be restored." Later on, towards the end of his judgment he says again: "The suit has, however, already been dismissed and although I accept Nilkanta Ghose s statement that he did not know of the existence of the suit until after the decree" and so on. I do not think it is the learned Judge s fault. He evidently based his judgment upon the form of the application which was, that the order of dismissal, and the decree, dated the 23rd of May 1919, may be set aside except as it relates to the direction as to payment of the costs, and so on. We have the decree now before us and it appears that there was no order of dismissal. It appears therefrom that there was a declaration that there was due to the defendant in respect of his advance of Rs. 15,000 after debiting the rents, (which were the subject-matter of the plaintiff s claim) and crediting the interest a sum of its. 7,190. Therefore, it appears that, far from dismissing the plaintiff s suit, the learned Judge treated the plaintiff s claim as having been admitted by the defendant, and apparently he deducted from the amount of the defendant s advance, that which was due to the plaintiff. The learned Judge thought that the matter was one for his discretion, and that inasmuch as the suit had been dismissed, questions of limitation might arise and that he ought, therefore, to exercise his discretion in refusing the application. Now, that we are made aware of the real fasts of the case, and it appearing that the suit was not dismissed, I think we ought to exercise the power vested in us under Section 151 of the Code of Civil Procedure the inherent power of the Court to make such orders as may be necessary for the ends of justice.

(2.) It appears that the decree of the learned Judge was made on the 23rd of May 1919. Before that, the Receiver had been appointed by the Alipore Court on the 12th of May 1919. The learned Judge has found that the Receiver did cot know of this suit, until after the decree and it is clear that the learned Judge himself did not know when he gave his judgment on the 23rd of May, of the appointment of the Receiver by the Alipore Court. Consequently, in my judgment, the matter should be set right, and the order which we propose to make is as follows: The decree of the 23rd of May 1919 will be set aside. We direst that the Receiver should be added as a plaintiff to the suit and in case the present plaintiffs may desire to raise any point, of which we are at present not aware, we direct that the present plaintiffs, instead of remaining as plaintiffs in the suit should be added as defendants: that will involve striking out their names as plaintiffs and adding them as defendants.

(3.) As regards the costs of the application before Mr. Justice Greaves and of this appeal, we think that each party should bear his own costs. We bear in mind that Mr. James client was not responsible for the Receiver not being aware of the suit, nor was he responsible for the Court not being aware of the appointment of the Receiver, on the other hand, when those facts were made known, his client did oppose the application of the Receiver for proceeding with the suit. We think that the justice of the case will be met if we order that each party shall bear his own costs of the application in the Court below and of this appeal.