1. This appeal relates to the receivership of the property of one Nagappa Chetty, who died in February, 1926. On his death one of his two widows adopted plaintiff 1 in the suit and then with plaintiff 1 instituted a suit against the other widow and. the other widow's daughters for a declaration that the adoption of plaintiff 1 was valid and alternatively for a partition of Nagappa Chetty's properties between her and the other widow. Pending that suit, a Receiver of all Nagappa Chetty's estate was appointed. Eventually the suit was compromised in October, 1928, and the Receiver's appointment was terminated in April, 1929. After that plaintiff 1 made an, application to the Subordinate Judge alleging that the Receiver was responsible for great loss to the estate. The Subordinate Judge held an inquiry into the matter and found that the Receiver had caused loss to the estate to the extent of Rs. 500 by failing to execute in a proper way a decree for money, which Nagappa Chetty had obtained. On that he made an order that the Receiver should pay into Court Rs. 500 on account of the loss which he had caused to the estate and that, if he failed to do so, plaintiff 1 should realise the amount from property given by the Receiver as security for the performance of his duties. Against that order the Receiver appeals,
2. A preliminary objection has been raised that no appeal lies in this case. Under the Code of Civil Procedure as now framed an appeal is allowed against an order made under Rule 4 of Order 40. But it is contended for plaintiff 1, the respondent here, that this order, made by the learned Subordinate Judge, was not one under that rule. Under that rule an order can be made that a Receiver's property be attached and sold to recover compensation for loss caused by him; but in this case, as I have mentioned, the order was not for attachment of the Receiver's property. It is, therefore, contended for plaintiff 1 that this was not an order under Rule 4 and so not an order against which any appeal is provided in the Code. In support of that contention three cases have been quoted; but before discussing them I think it will be better to set out the rates with which we are concerned. Rule 1 of Order 40 provides for the appointment of Receivers. Rule 2 provides for the fixing of their remuneration. Rule 3 prescribes their duties or some of their duties and lays down that every Receiver shall furnish security to the extent the Court thinks fit, shall submit his accounts at such periods and in such form as the Court directs, shall pay the amount due from him as the Court directs and shall be responsible for any loss occasioned to the property by his wilful default or gross neglect. The provisions of that mile make it clear that a Receiver has certain duties and that he is responsible to the Court for those duties. He cannot say that he is appointed to look after the interests of the parties and is responsible only to the parties. Then we come to Rule 4, which provides for the enforcement of the Receiver's duties and for making good any loss caused by his wilful default or gross negligence. There is an appeal provided against orders made under Rule 4; but there is no appeal provided against any order made under Rule 3, the explanation of that being that Rule 3 does not provide for any order being made, as it is concerned with prescribing the Receiver's duties. Now part of the ordinary duties of a Receiver is to pay into Court or to some one else, as the Court may direct, amounts which he has in his hands or has collected. That would include periodical payments which he is directed to make or amounts which on investigation of his accounts he is directed to pay. Amounts which he is directed to pay in, connection with his accounts may include amounts which those accounts show he has in his hands, amounts which those accounts show should have been in his hands and amounts which his accounts, if properly kept, would have shewn he ought to have in his hands. The payment of those amounts into Court or into a bank or otherwise, as the Court directs, is all part of the ordinary duties of the Receiver as laid down in Rule 3, and he has to pay those amounts under the ordinary control of the Court, which can direct the general conduct and administration of the estate. The Code has provided no appeal against any of the ordinary directions which a judge may give a Receiver in the course of his administration and no appeal against an order that such amounts as he has or are found due from him on investigation of his accounts should be paid into Court or elsewhere. That is the stage, I think, to which the cases referred to by Mr. Rajah Aiyar in support of his preliminary objection really relate.
3. The Madras case he quoted is Palaniappa Chetty v. Palani-appa Chetty (1921) M.W.N. 806. In that case there had been, it appears, some investigation of the Receiver's accounts by the Subordinate Judge; but the inquiry into the accounts had not been completed and the accounts had not been settled. But at that intermediate stage the Subordinate Judge found that in any case Rs. 31,000 was due from the Receiver, and he said 'Pay it into Court.' The Receiver, who was one of the parties to the suit, tried to appeal to this Court; but the learned Judges before whom the appeal came said that it was incompetent, that he had no right to appeal against such an order. That decision, if I may say so with respect, appears to me to be quite correct, and it also appears to me to be of no avail to plaintiff 1 in this case. In another of the cases quoted, Ganesh Lal v. Kumar Satya Narayan Singh (1919) 4 Pat. L.J. 636, Receiver's accounts were investigated and the result was that he was found liable to pay a certain amount to the estate. He was directed apparently to pay that amount into Court. The learned Judges held that there was no appeal against such an order, which they said did not amount to an order under Rule 4 of Order 40. The other case quoted was L.A.R. Arunachellam Chettiar v. U Po Lu. I.L.R. (1925) 3 R. 318 There a Receiver was ordered to pay Rs. 4,760 after inquiry into his accounts. One of the parties to the suit appealed to the High Court urging that the Receiver ought to be ordered to pay a larger amount. The decision was that no appeal lay against that order. The learned Judges say that there was no order made 'under the operative part of the section,' by which I understand them to mean that no order was made under Rule 4 enforcing the direction to the Receiver. All those cases appear to me to relate only to the stage when in the ordinary course of administration or at the close of administration the Court in the exercise of its control over the Receiver directs him to pay into Court or to somebody else an amount which it is found he has or ought to have in his hands. But a Receiver may not obey that order either because he is dissatisfied with it or for some other reason. Then Rule 4 provides that, if he does not do so, the order may be enforced by attaching his property and selling it if necessary. Against such an order of attachment the Code provides an appeal; and, if the Receiver appealed against the order of attachment, no doubt he could then dispute the grounds upon which the order was made. But Rule 4 also provides for quite a different case, the case with which we are concerned, where there is no money found due from the Receiver on investigation of any accounts, but it is found that he has caused loss to the estate by wilful default or gross negligence. If the Court finds that, it is obvious from the rule that the amount of the loss must be estimated and fixed by the Court, and then the rule provides that that amount may be recovered by the attachment and sale of the Receiver's property. Against that the Code provides an appeal. The cases quoted by Mr. Rajah Aiyar have no application to such orders as that; and it is not necessary for the appellant in this case to dispute the correctness of those decisions, which do not apply to him.
4. But it has been contended by Mr. Rajah Aiyar that, although if it is found by the Court that a Receiver has caused loss through wilful default or gross negligence and an order of attachment is made in consequence against him, he can appeal, yet, if it is found that he has caused loss in the same way but some other order is made against him, then he cannot appeal. But, when we examine the rule, can any other order be made against a Receiver when it is found that he has occasioned loss to the estate by wilful default or gross negligence except an order of attachment? Mr. Rajah Aiyar contends that an order can be made like a decree in a money 'suit that he is to pay a certain amount and that can be executed by arrest, by attachment or by sale exactly as a money-decree can be executed; and he suggests that that is the kind of order which the learned Subordinate Judge has made in this case, an order which he maintains he is entitled to enforce by arresting the Receiver. I do not think it can be disputed that the rules imply not only that a Receiver can be required to give security for the performance of his duties but that, if he occasions loss to the estate, the amount of compensation due from him can be recovered by proceeding against the security, though that is not explicitly provided for. But apart from proceeding against the security the only provision for taking action against him under the rules is that his property can be attached. We must not only notice that that is the only provision made, but we must notice that that provision is specifically inserted in the rules. Now if, as Mr. Rajah Aiyar contends, such an order against a Receiver could be executed like a money-decree by arrest and by attachment, what is the point, what is the use, of specifically providing that it can be executed by attachment? Surely this is a case where we must apply the ordinary rule of interpretation that the expression of one thing excludes others. The fact that the rule provides for the enforcement of such an order by attachment implies that that is the only way it is to be enforced, that arrest and imprisonment are not to be the methods of enforcement; and I have no doubt that that is the historical explanation of the rule having been made in the form in which it is. But Mr. Rajah Aiyar, as I understand him, went further and contended that, although if the learned Judge had ordered the Receiver's property to be attached in this case, there would have been an appeal, as he has not done so and has chosen to make some other order, then, whether that order is a legal order or not, there is no appeal against it. That appears to me, if I may say so, quite an unreasonable contention. Could it be contended that, if a Magistrate who had power to convict a man of theft and to sentence him to imprisonment, which conviction and sentence would be subject to appeal, chose instead of sentencing the man to imprisonment to sentence him to death, there would be no appeal against that sentence? If a Court acting within its jurisdiction in an appealable case makes a decision but embodies it in a decree or order which is illegal, is the case no longer subject to appeal? If that were so, many wrong decrees and orders would be saved from appeal merely because they were wrong. In the present case, if the learned Subordinate Judge has proceeded, as I think it is clear he must have proceeded, under Rule 4 to decide that the Receiver in this case has caused loss to the estate by gross negligence and then instead of ordering attachment, which he could legally do in such circumstances, has made an order enforcing the recovery of compensation from the Receiver by some illegal means, that cannot save his order from appeal. I doubt myself whether the learned Subordinate Judge ever intended to make the order which Mr. Rajah Aiyar represents that he made, an order such as a money-decree which plaintiff 1 could execute by arrest. The learned Subordinate Judge, as I understand his order, has found that the Receiver ought to pay a certain amount of compensation for the result of his gross negligence, has given him an opportunity of paying it into Court, has ordered that, if he does not do so, plaintiff 1 may proceed against the security and has kept his power to attach the Receiver's property in reserve for use later if necessary. But, whether that was what the learned Subordinate Judge really intended or not, the fact that he has not made an explicit order for attachment in this case but has worded his order differently cannot in my opinion make it immune from appeal. In my opinion the learned Judge's order is one under Rule 4 of Order 40 of the Code, and the preliminary objection that no appeal lies should be overruled.
5. I may add that, though I feel no doubt about the application of Rule 4 of Order 40 to this case, in my opinion the wording of the rule might well be improved by amendment in order to make clear exactly what orders it covers and what orders are therefore subject to appeal under Rule 1(s) of Order 43.
6. The neglect of which the Subordinate Judge has found the Receiver guilty in this case is that he has not recovered by execution Rs. 500 or thereabouts on a money-decree obtained by Nagappa Chetty in 1915 but still unsatisfied when he died in 1926. The debtor in that case was one Muthuswami Chetty. I cannot see in the learned Subordinate Judge's judgment any express finding that the estate has suffered loss to the extent of Rs. 500 through failure to execute the decree; but we must take it, I think, that that is implied in the judgment. The learned Subordinate Judge appears to accept the view that the debtor, Muthuswami Chetty, had land, which the Receiver might have attached in order to obtain the balance due under that decree. The Receiver's explanation is that from his inquiries he learnt that the land was so much encumbered that it was not worth while spending money on attaching it in execution of the decree. The learned Subordinate Judge appears to be of opinion that there was sufficient property of Muthuswami Chetty unencumbered which could have been attached for the recovery of what was due on the decree. But there again there is no explicit finding in his judgment. His view appears to me to be that the Receiver has not shown that there was no property of Muthuswami Chetty available for the recovery of the decree-debt. This is not a case in which the Receiver did nothing. The decree was nearly eleven years old when he was appointed. Before the twelve years' rule could come into force he applied for execution and in all made seven applications for the arrest of the judgment-debtor. The charge against him is, not that he overlooked the decree or did nothing in regard to it at all, but that he failed to attach the judgment-debtor's property. If he is to be found guilty of gross neglect in that, in my opinion it should first be shown that it would have been profitable to the estate for him to have attached that property. But the learned Subordinate Judge appears to have looked at the matter the other way round and to have held that, unless the Receiver could prove definitely that there was no property of Muthuswami Chetty available for the satisfaction of this decree, then he must be regarded as grossly negligent because he only applied for Muthuswami Chetty's arrest and not for the attachment of his property. The Receiver, a man of experience--indeed we are told the senior member of the Periyakulam Bar--says that he did make inquiries in this matter and he was informed that there was no property of Muthuswami Chetty worth attaching. Some evidence has been produced that Muthuswami Chetty owned about 12 acres of land and some houses; but the Receiver says that his in-formation was that all the property was encumbered. He says also that he questioned plaintiff 1's natural brother and agent, P.W. 1, about it and also another of the parties to the suit and they told him that it was not worth while proceeding against Muthuswami Chetty's property and it would be only waste of money to do so. P.W. 1 in his evidence denies that he told the Receiver anything of the sort, and the learned Subordinate Judge appears to believe P.W. 1. Allowing the greatest weight to the learned Subordinate Judge's appreciation of the oral evidence given before him, I doubt whether P.W. l's word in this matter should be preferred to that of the Receiver. P.W. 1 is a very interested party, and he has given very unsatisfactorily vague evidence about Muthuswami Chetty's property and the extent to which it was encumbered; and besides denying that he told the Receiver that it was not worth while proceeding against that property, though he now maintains that there is, and always was, plenty of property of Muthuswami Chetty available for attachment, he says that he never went to the Receiver nor said a word to him about it during the period in question. He was the person conducting plaintiff l's suit; and, if he did not trouble to bring to the Receiver's attention the fact that there was property of Muthuswami Chetty available, it appears to me very doubtful whether we should believe his statement about that property now. The Receiver's account that he had information that it was not worth while proceeding against that property receives very considerable confirmation from Nagappa Chetty's conduct in connection with the decree during the eleven years he held it before he died. During all that time Nagappa Chetty never applied for the attachment of Muthuswami Chetty's property at all. Muthuswami Chetty made three comparatively small payments towards the decree; and Nagappa Chetty kept it alive only by applying for Muthuswami Chetty's arrest. Now he must have known the condition, of Muthuswami Chetty's affairs or could have ascertained them during all the time he held that decree against him; but he did not think it worth while to attach any property. It was suggested that he preferred to proceed against Muthuswami Chetty by arrest because Muthuswami Chetty was his friend, an absurd suggestion which nobody has attempted to justify here. It has been urged against the Receiver, and the Subordinate Judge thought it of importance, that he took no statement from P.W. 1 or any other party to the suit when they told him, as he says, that it was not worth while to proceed against Muthuswami Chetty's property, though he had taken statements in regard to other matters in connection with his receivership. That certainly is not a matter to be overlooked. And I think myself it would have been wiser for the Receiver, when he came to the conclusion that it was not worth while to proceed against Muthuswami Chetty's property and that the only thing to do was to try again and again to arrest him, to inform the Subordinate Judge that he had reached that conclusion and to ask approval of the course which he proposed to take, But the question before us is 'Was the Receiver guilty of gross neglect in adopting the course of execution by arrest instead of execution against the property in the circumstances?' When we remember the history of the case during Nagappa Chetty's life and the fact that P.W. 1 never told the Receiver, never according to his own account suggested to the Receiver, that there was any property worth attaching, and the
7. Receiver, a man of responsibility and position, says that he made inquiries and then on the information he could obtain came to the conclusion that it was not worth while proceeding against the property, can he be said to have been guilty of gross negligence? In my opinion that charge is not made out against him, and therefore the learned Subordinate Judge's order was wrong.
8. I may mention that there is one other subsidiary matter in the appeal. It was alleged against the Receiver that he should have recovered Rs. 93 from a certain lessee. The learned Subordinate Judge said that there was still time to sue that lessee and plaintiff 1 could do it himself. But he made a conditional order that, if plaintiff 1 did not receive that amount from the lessee, then the Receiver should pay it. It has not yet been found that there has been any loss to the estate in connection with that amount. No one yet knows whether there is going to be any loss. If there were any loss, it would still have to be determined whether that loss was due to any neglect on the part of the Receiver. The learned Subordinate Judge in my opinion was clearly not justified in making a hypothetical and conditional order that, if the amount was not recovered in further proceedings from the lessee, the Receiver should pay it.
9. In my opinion this appeal should be allowed with costs in this Court and the order of the learned Subordinate Judge, so far as it is against the Receiver, should be set aside.
Anantakrishna Aiyar, J.
10. I agree. On the merits I agree with my learned brother and have nothing to add.
11. On the preliminary objection taken by the learned Advocate for the respondent that no appeal lies in this case, I should like to add a few words of my own, having regard to the importance of the question. I think that the learned Advocate for the respondent is correct in his contention that no appeal should be taken to lie as a matter of course and that the appellant has to show in every case that a right of appeal has been expressly given to him by statute. See Miakshi v. Subra-mania and Rangoon Botatoung Company, Ltd. v. The Collector, Rangoon (1912) L.R. 39 IndAp 197 : I.L.R. 40 C. 21 : 23 M.L.J. 276 (P.C.). The question then is whether Order 40, Rule 4 read with Order 43, Rule 1(s), gives a right of appeal in a case like the present. Now, the learned Advocate for the respondent argued that it is only in cases where the Court directs the property of the Receiver to be attached with a view to be sold, that a right of appeal is given under Order 43, Rule 1(s). I am unable to agree. The wording of Order 43, Rule 1 (s) is to this effect:
An appeal shall lie from an order under Rule 1 or Rule 4 of Order 40.' If, therefore, the order in question is an order passed under Order 40, Rule 4, then it follows that an appeal lies under the express provisions of Order 43, Rule 1(s), Civil Procedure Code. The learned Advocate for the respondent argued that the present case comes under Order 40, Rule 3. I am again unable to agree. Order 40, Rule 3 only declares the duties of a Receiver appointed by Court. A Receiver in one sense would be the representative of the party who finally succeeds in the litigation, and it is possible that Receivers may get into their heads the idea that their only obligations are to account to the party who would be finally successful in the litigation; and there are statements in the reports to the effect that the Receiver is the Receiver of such a party. In order to make it clear that the Court that appoints Receivers has got certain rights of control over the Receiver and that the Receiver has certain duties to the Court, Order 40, Rule 3 provides in four clauses particular heads of duties of the Receiver in that connection--the enforcement of the duties of the Receiver being worked out by orders passed under Order 40, Rule 4. The learned Advocate for the respondent argued that Clause (d) of Rule 3 provides for the present case, which is a case where a Receiver is sought to be made liable for loss alleged to be occasioned to the estate by his wilful default or gross negligence. Reading Rule 3(d), I am not able to find anything there which fixes the exact amount of loss or damages which the Receiver is liable to pay to the estate by reason of. his wilful default or gross negligence. As I said, Rule 3 only declares the duties and it is under Rule 4 that the liabilities are worked out and enforced. Then it was argued that there is no specific provision in Rule 4 which enables the Court to fix any particular amount which the Court finds to be due from the Receiver in respect of his management of the estate as Receiver. No doubt there is no such specific provision in Rule 4, and it may be desirable to insert such a specific provision; but reading Rule 4, I find that it by necessary implication makes provision for the Court determining the amount due by the Receiver under the several heads specified in Rule 3; for, the rule proceeds further to point out how in cases of non-payment by the Receiver of the, amount so found, the amount is to be realised by the Court. I am clear that the Court has first to determine and find out, under Rule 4, the amount due by the Receiver. Against any order made by the Court fixing such amount, an appeal lies, because, in my view, such an order is an order passed under Order 40, Rule 4, and according to the express wordings of Order 43, Rule 1(s), an appeal lies in such a case. Then the learned Advocate argued--and he submitted that he is supported in that argument by some reported decisions--that according to the above view we are not giving due effect to the last portion of Rule 4. I think the answer to that argument would be clear if one looks into the history of that provision. There was no such provision in the Code of 1882, Section 503, relating to the enforcement by the Court of payment of the amount found due from the Receiver. Having regard to the fact that in Section 18(4) of the Provincial Insolvency Act of 1907, the Legislature thought it proper--with reference to Official Receivers--to point out the mode by which amounts found due by them should be realised, the Legislature (probably for uniformity, and, possibly, also on grounds of policy) made similar provisions that the amount found due by the Receiver appointed under the provisions of the Civil Procedure Code should be realised (in addition to the mode prescribed by Order 40, Rule 3, namely, by proceeding against the security which he might have already furnished) by attaching and selling his property. The wordings of Rule 4 of Order 40 are similar to those in subsection (4) of Section 18 of the Provincial Insolvency Act of 1907. Evidently it was thought that other modes of realising amounts ordered by Courts, viz., by arrest, etc., should not be resorted to in such cases, as the history of the legislation on this point indicates. We find a similar provision repeated in Sub-section (4) of Section 56 of the Provincial Insolvency Act of 1920. Of course, our decision should rest on the wordings of the section applicable to the case on hand; but to understand and properly appreciate the meaning and effect of the words, it will be useful to remember the history of the matter. If we remember this aspect of the question, then, the last portion of Rule 4 does not, in my view, give any trouble at all in considering the question of appeal. Otherwise, it is surely curious that the Legislature should provide for appeals only when the property of the Receiver is attached to realise the amount found due by the Receiver (when, it is not disputed, the question of liability, and the amount found due, could also be agitated), without providing for direct appeal from orders fixing such amounts. I am of opinion that one is not driven to such a conclusion, as I read the provisions of the Code.
12. Turning to cases cited by the learned Advocate for the respondent, the first case that should receive our careful consideration is the case in Palaniappa Chetty v. Palaniappa Chetty (1921) M.W.N. 806. But on reading the judgment as a whole, I find that the learned Judges state there that the amount due from the Receiver had not been finally fixed by the Court. In fact, I find that a lump sum of Rs. 36,100 is directed to be paid by the Receiver into Court. It, therefore, seems to me that, reading the judgment as a whole, it is only a case of the Court issuing directions to the Receiver--its officer--as to how the money in his hands should for the time being be safeguarded or disposed of. I do not understand that to be a case where the Court after going into the question determined the amount for which the Receiver is liable. I receive support in my so understanding this judgment but what happened later on, in the very case that was the subject of discussion in Palaniappa Chetty, v. Palaniappa Chetty (1921) M.W.N. 806 That matter at a later stage came again before this Court in Palaniappa Chatty v. Palaniappa Chetty (1922) M.W.N. 741 and the learned Judges--Justices Krishnan and Venkatasubba Rao--specifically state that they are 'not able to understand how the amount of Rs. 36,100 which the Court directed the Receiver to pay into Court was arrived at--(Counsel in that case were also unable to state how the amount was arrived at)--evidently because the accounts of the Receiver had not been duly investigated and the amount due by him had not been determined by the Court in accordance with Order 40, Rule 4. As I read the judgment in Palaniappa Chetty v. Pahniappa Chetty (1921) M.W.N. 806, it is not a decision on this point. As regards Ganesh Lal v. Kumar Satya Narayan Singh (1919) 4 Pat. L.J. 636 and L.A.R. Arunachellam Chettiar v. U Po Lu I.L.R. (1925) 3 R. 318 in both these cases the learned Judges seem to suggest that a right of suit would be available in such cases and that the matter is not one for appeal, and that appeal is limited only to cases where consequential orders attaching property of the Receiver are passed under Order 40, Rule 4. I may state that, as remarked by the learned Judges who decided Palaniappa Chetty v. Palaniappa Chetty the proper procedure to be followed in such cases is this. If after asking parties interested to state the points in dispute and after giving them liberty to surcharge and falsify the accounts filed by the Receiver, the Court comes to the conclusion that the matter involved is not intricate and that justice to the parties and the. Receiver could be meted out by having the questions decided in those very proceedings, then the Court should appoint a Commissioner to go into the matter after taking evidence and itself dispose of the disputes raised. Of course, evidence is taken, and the questions are ultimately decided by the Court. To say that after all this is done, a right of suit is still available to any aggrieved party or Receiver seems to be really not in accordance with what the learned Judges have observed in Palaniappa Chetty v. Palaniappa Chetty (1922) M.W.N. 741 Further, a suit against a Receiver requires the sanction of the Court. If the Court, after examination and investigation into the matter after all the evidence available has been let, in, should come to definite conclusions on points in dispute, then ordinarily I cannot understand the Court giving leave to file a fresh suit relating to the same matter. The learned Judges in these cases Ganesh Lal v. Kumar Satya Narayan Singh (1919) 4 Pat. L.J. 636 and L.A.R. Arunacchellam Chettar v. U Po Lu I.L.R. (1925) 3 R. 318 were evidently dealing with cases where only directions were given to the Receiver in the matter of the management of the estate, and not with cases where the Court had to decide the amount due from the Receiver in respect of wilful default or gross negligence; and in that view no objection could be taken to the remarks of the learned Judges in those cases.
13. Mr. Justice Heaton in the case in Shriniwas v. M.C. Waz I.L.R. (1920) 45 B. 99 observed that Order 40 is 'somewhat imperfectly framed.' With respect, I agree with that remark, and as the matter is one which is likely to be of frequent occurrence, it is right that there should be no doubt on such matters. It is a question for consideration whether Order 40, Rule 4 may not be amended by the addition of a clause providing that the Court may, after inquiry, pass orders determining the amount due from the Receiver on examination of his accounts, and also similarly determine the amount of loss caused to the estate by the wilful default or gross negligence of the Receiver.
14. I, therefore, hold that an appeal lies in this case, and accordingly overrule the preliminary objection.
15. I agree with my learned brother on the merits of the case and also in the order as to costs which he proposes to pass in this case.