M A CUNNINGHAM SIRCAR Vs. FRED STEPHENS

JUDGEMENT

(1.) In this matter the petitioner asks that an order made by the learned Judge of the Small Cause Court should be set aside.

(2.) The point has arisen owing to these facts. There was a decree made in a suit brought by the plaintiff, F. Stephens, against T. and M. Bateman, who were the trustees under a certain deed. His suit was for the return of deposit made on an agreement for sale of the trust property. During the pendency of this suit, proceedings were taken by the present petitioner to have the Batemans removed from their trusteeship, and two or three days before the decree in Stephens suit was passed, the Batemans expressed their desire and intention to resign from the trusteeship. Three days after the decree in Stephens suit, the Batemans wore removed by the Court in Mrs. Sircar's the present petitioner's suit, and she was appointed trustee. It is true that the Batemans were sued in Stephens suit as trustees, but the decree was by consent in favour of the plaintiff and it stated: If personal execution 16 weeks against defendant 1, no personal execution against defendant 2; stay of execution for throe months.

(3.) It was not stated that the decree was "to be realized out of the trust properties in the hands of the trustees." Therefore this decree was in the form of a personal decree against the defendants, and the learned Judge of the Small Cause Court seems to have been impressed with this view of the case, because he says that somehow or other the decree Was passed without the addition of the words to which I have just referred. And he states that he originally expressed the opinion that without amendment of the decree the plaintiff could not succeed in his application, to substitute the new trustee as defendant, and as a result the application was withdrawn with leave to make a fresh application. A fresh application was made and the learned Judge eventually came to the conclusion that a mistake was made at the time the decree was passed and held that, if such a mistake is discovered later, it is the duty of the Court "to see to the nature of the relief" and to allow substitution. Consequently, he held that he had power under Order 22, Rule 10, to order that the petitioner's name be substituted as defendant in Stephens suit.