1. This suit was brought in 1884 for the purpose of establishing the plaintiff's right to a share of the property left by the late Bajah Bejoy Kesbav Roy.
2. At an early date in the suit the Court Receiver was appointed Receiver of the property, the subject-matter of the suit.
3. On the 15th August, 1885, a decree was made in favour of the plaintiff.
4. On the 16th September, 1886, this Court made an order, the effect of which has been much discussed at the hearing of the present application. That order provided that the Receiver should be at liberty to accept the offer made by Baboo Sarodapersaud Soor for a lease to him of all the properties appertaining to the said estate with certain exceptions for a term of five years from the date of Pooneah in the month of Assur 1293 at the annual rental of Rs. 75,000. It was further ordered by the same order that all necessary parties as the Registrar of this Court should direct do join in the lease, and it was further ordered that the Registrar do approve of the lease and execute the same for and in the name of the plaintiff and the infant defendant, and cause the same to be registered ; and it was further ordered that the Registrar do also execute the lease for and in the name of the defendant Ranee Doorgasoondery Dossee in the event of her not executing the same on the same being duly tendered to her for that purpose.
5. Sarodapersaud's offer was accepted by the Receiver and acted upon by both parties. On the 18th September, 1886, Sarodapersaud Soor deposited with the Receiver Government Securities of the nominal value of Rs. 20,000 as security for his due performance of the covenants of the izarah, and on the same date paid the Receiver the sum of Rs. 20,000 on account of the izarah rent for the then current Bengali year 1293, and the Receiver thereupon granted to him amulnamahs, the effect of which was to put him in possession of the property. Although the proposed lessee obtained possession and the Receiver obtained rent from him no lease has yet been executed.
6. I am satisfied from the correspondence that the delay has not been caused by any default on the part of Sarodapersaud Soor. On the other hand I do not think that there has been any willful default on the part of any of the parties to the suit.
7. On the 27th April, 1887, a decree was made by the Appeal Court dismissing the suit. The result of such decree is that the defendant Ranee Doorgasoondery is declared entitled to the property of her late husband.
8. This summons was taken out on the 9th of January, 1888, by Sarodapersaud Soor; it requires the defendant Doorgasoondery Dossee to show cause why the izarah should not be completed, and the draft submitted to the Registrar for approval, and also why the Government Securities for Rs. 20,000 deposited with the Receiver as part security for the performance of the covenants of the izarah should not be retained by the Receiver pending the settlement of the izarah and the execution thereof by the Ranee, or in the alternative why they should not be made over to the Bank of Bengal for safe custody pending the completion of the izarah, and to show cause why such securities should not thereafter remain in the custody of the Receiver or of the Bank, as the case might be, during the term of the izarah to be dealt with only subject to the order of this Court.
9. With respect to the execution of the izarah there are three questions for me to determine:
1. Will the Court entertain an application by a proposed lessee with whom a contract for a lease has been made for the execution of a lease, or is it necessary that in order to enforce his right he should bring a suit for specific performance?
2 Supposing such application to be possible when a suit is pending, does the dismissal of the suit prevent such an application?
3. Are the circumstances of this case such as to justify the Court in refusing an order for the execution of the lease?
10. I do not think that there can be any real doubt as to the determination of the first question.
11. The Court in managing property pending suit, and in managing property which is being administered by the (Court, has occasionally to sanction leases, and to require the execution of such leases. Summary orders are made in England for the execution of leases not only by the parties to the suit, but also by the lessee, and I find that in a case cited at p. 1063 of Darnell's Chancery Practice Carne v. Brancker 17 W.R. (Eng.) 342 (837) an enquiry was directed as to the damages which a lessee who had repudiated his contract should pay. On reference to the report of that case I find that the lessee happened to be a party to the suit, but this circumstance I do not think makes any difference. In that case the Master of the Rolls declined to order specific performance, but damages afforded apparently a complete remedy against the lessee. The contract for a lease is made with the Court, and as pointed out by Lord Justice Giffard in the case I have mentioned, the approval by the Judge of the offer constitutes the contract. I think that a Court has complete power to enforce summarily a contract made by it when managing or administering an estate, whatever that contract may be.
12. With regard to the second question, it must be remembered that the contract was completed and acted upon before the suit was dismissed, and in the ordinary course the lease would also have been signed before that event happened.
13. It is admitted that the rights of the lessee are not affected by the dismissal of the suit, but it is contended that his remedy is altered. I do not assent to this contention. The lease is wholly independent of the result of the suit. I do not think that the fact that the Court has ceased to manage the property takes from it the power of enforcing the performance of subsisting contracts made by it. The dismissal of this suit only determines the rights of the parties inter se, and I do not think that the dismissal of the suit would any more than any other form of decree affect the remedies of the lessee.
14. With regard to the third question I do not think that there are any circumstances in this case which would justify me in refusing an order for the execution of a lease. In terms of this summons I make such order.
15. As to the security deposited by the lessee, he so deposited it with the Court, and relying on the safety which would be ensured by its being kept by the Receiver. I do not think it would be right to require the lessee to leave the money with the Ranee, who has a limited interest only.
16. The securities deposited by the lessee with the Receiver will be paid into Court to the credit of an account to be entitled 'Andool Raj Lease Security Account.' The interest can be, from time to time, paid out to the lessee, but the principal cannot be paid out except on notice to the lessee and to the Ranee, or in case of her death the person or persons then entitled to the property subject to the izarah. The Eanee must pay the costs of this application. I certify for counsel.