SATIRANJAN BONERJEE Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THIS matter has been brought up from the Court of the Municipal Magistrate of Calcutta who passed an order for demolition with regard to a certain structure against the petitioners in these proceedings. The fifth petitioner is the receiver of the premises in question along with various other properties which were the subject-matter of a partition suit before the Subordinate Judge of 24 Parganas. The ground that has been the subject-matter for argument before us is ground No. 5 of the petition which states that the proceeding is without jurisdiction inasmuch as no leave was obtained from the Court which appointed the receiver. It is not exactly a question of jurisdiction tout reliance has been placed upon the principle that before a receiver is made a party to a proceeding the leave of the Court appointing him should be taken. Reference has been made to the case of W.R. Fink V/s. Corporation of Calcutta [1903] 30 Cal. 721 which was also the case of an order made by the Municipal Magistrate against a receiver where leave had not been taken and it was held that the order was bad. In the present case leave has not been taken although it appears that the original proceedings brought against petitioners 1 to 4 only were withdrawn on the ground that the property was in the possession of the receiver and would, therefore have expected that the opposite party would have been deligent enough in the course of the proceeding to see that the record was in order and to obtain the necessary leave of the Court, to make the receiver a party to the proceedings. On the other hand, these proceedings had gone on until the final order was made with out any point of this kind having bees raised before the learned Magistrate and the receiver actively participated in the proceedings that were held. Had the point been taken in the lower court, the defect would have been at once rectified by an application being made to the Court appointing the receiver. The question now is whether the order should be set aside now on this ground or whether the opposite party should still be allowed an opportunity of putting the matter right by making an application. We have been referred to the ease of Sarat Chandra Banerjee V/s. Apurba, Krishna Roy [1911] 15 C.W.N. 925 which although not a case of demolition proceedings under the Municipal Act is an authority which goes to show that even at this stage of the proceedings an opportunity may be given to the opposite party to rectify the defect which now appaars and although that was a case only of rateable distribution, we think that the present is a case where this procedure ought to be followed.

(2.) LET the application, therefore, stand over for a fortnight to enable the opposite party to take this step and subject to that being done let the matter come up on the list after the lapse of that period. The Court will then be in a position to see what has been done. It will be open to the petitioners to urge the other ground on which this Rule was granted.