1. The plaintiff is the appellant. Her suit for specific performance of an alleged contract of 20th March 1910 (under which the plaintiff was entitled to obtain a deed of renewal of a kanom mortgage which had been enjoyed by her deceased sister from 1897) was dismissed by the District Court on two grounds: (1) The present suit having been commenced in June 1914 against the Receivers (defendants Nos. 3 to 5) appointed by the Sub-Court of Calicut in a Suit No. 13 of 1913 (brought for removal of the 1st defendant, the promisor under the plaint contract, from his position of karnavan by some members of his tavazhi) without previously obtaining the sanction of the Sub Court, it could not be sustained even though in July 1914 (before even the Receivers filed their written statements), the plaintiff obtained the Sub Court's sanction to proceed with the present suit against the Receiver, (2) Though 'there was a general understanding' between the plaintiff and the 1st defendant that the 1st defendant 'would be agreeable to the plaintiff' (in the matter of the renewal of the kanom of 1897 in the plaintiff's name) 'if she evicted one Syed Ali' (in possession of one of the kanom lands), 'there was no definite contract' for renewal.
2. We are unable to agree with the learned District Judge as regards the first ground of his decision. Though the judgment in Pramatha Nath Gangooly v. Khetra Nath Banerjee 9 C.W.N. 247 (the decision of a single Judge) is in favour of the view of the District Judge and though a decision of this High Court (again, that of a Single Judge) venkatasubbaramiah v. Nambura Ramiah Sethi 24 Ind. Cas. 622 also contains observations in support of the same view, we think that the better opinion is the one enunciated by Division Benches of the Calcutta High Court in Banku Behary Dey v. Harendra Nath Mukherjee 15 C.W.N. 54 and Maharaja of Burdwan v. Apurba Krishna Roy : 14 C.L.J. 50, and in Jagat Tarini Dasi v. Naba Gopal Chaki 34 C.305 (one of the members of the said Benches having been that very learned Judge Sir Asutosh Mookerjee). That opinion is also supported by text-writers of acknowledged authority, like High on Receivers, Woodroffe (page 9l) and Kerr (page 167). That opinion is to the effect that the omission to obtain previous sanction (a sanction which is not a condition imposed by statutory law, like the sanction mentioned in Section 92 of the Code of Civil Procedure or Section 17 of the Presidency Insolvency Act but one imposed by the Common Law to enforce due respect towards Courts of Justice) does not affect the jurisdiction of the Court but is an illegality which can be effectively cured by the plaintiff obtaining the sanction during the course of the litigation.