1. The facts of this case are shortly as follows: One Heera Lall Seal died intestate on 17th March 1876, and his estate is now being administered by the Court. The accounts taken in the administration suit do not disclose assets sufficient to pay all the creditors in full, and this suit has been brought by the plaintiff Banks, in the nature of a supplemental suit to the original administration suit, with the view of obtaining a declaration that Heera Lall Seal was at the date of his death entitled to a one-fifth share in the property comprised in a certain Indenture of Settlement made by his father Mutty Lall Seal, and dated 21st February 1848, and that his (Heera Lall's) representatives in estate are now, as such and subject to the liquidation of Heera Lall's debts, entitled to the said one-fifth share, thus seeking to make available a very considerable estate for distribution amongst the general body of creditors.
2. The suit purports to be brought by the plaintiffs 'on behalf of themselves and all the other unsatisfied creditors of Heera Lall Seal, deceased.'
3. It is contended by Mr. Palit, who appears for the first defendant, that the suit cannot be entertained, inasmuch as the provisions of Section 30 of the Civil Procedure Code have not been complied with.
4. That section reads thus: 'Where there are numerous parties having the same interest in one suit, one or more of such parties may, with the permission of the Court, sue or be sued, or may defend in such suit, on behalf of all parties so interested, but the Court shall in such case give, at the plaintiff's expense, notice of the institution of such suit to all such parties either by personal service or (if from the number of parties or any other cause such service is not reasonably practicable) then by public advertisement, as the Court in each case may direct.'
5. Mr. Pugh for the plaintiffs admits that no such permission has been obtained, and argues that it was unnecessary. 'Parties,' says Mr. Pugh, 'does not mean persons in the position of creditors, but means only parties' necessary to the suit, without whose presence on the record the suit would be defective.'
6. I am unable to put so limited a construction upon the word 'parties.' I think it means 'persons.' It appears to me that the provisions of the section would be unintelligible unless the word received that meaning.
7. The section appears to be taken from Rule 9, Order XVI of the rules and orders made under the provisions of the Supreme Court of Judicature Act, 1875. That rule says: 'Where there are numerous parties having the same interest in one action, one or more of such parties may sue or be sued, or may be authorised by the Court to defend in such action, on behalf or for the benefit of all parties so interested.' The result of this rule was to give legislative sanction to the practice which had long obtained in the Court of Chancery; but there is this distinction between the rule and Section 30: the former contains no provision requiring the permission of the Court, nor any provision as to notice. The provision requiring the authority of the Court for such proceeding, and the clause 'but the Court shall give, etc.,' to 'may direct' are important amendments and certainly necessary in this country, without them many a man might be concluded by a suit of which he never may have heard (Broughton's Civil Procedure Code, 133).
8. Mr. Palit in support of his argument referred to the case of Jan Ali v. Ram Nath Mundul I.L.R. 8 Cal. 32 decided by an Appellate Bench of this Court, and though I am not prepared to say that I should consider every judgment of an Appellate Bench binding upon me when sitting on the Original Side, yet every such judgment should receive respectful consideration and careful attention, and should be followed unless I am very clearly of opinion that the conclusion arrived at is an erroneous one.
9. In that case a deed of wuqf had been executed making an endowment of certain land, the profits whereof were to be appropriated to the maintenance of a mosque. The defendant No. 1 was appointed Mutawalli under the deed of wuqf; he borrowed Rs. 575 from defendant No. 2, giving, by way of security, a mortgage of part of the endowed property; he subsequently borrowed Rs. 650 from defendant No. 3, and concluded an ijara settlement with him; defendant No. 2 brought a suit upon the mortgage bond, obtained a decree, took out execution, and brought to sale the endowed property comprised in the mortgage which defendant No. 3 purchased. The plaintiffs, who were followers of the Mussulman religion living in the village where the mosque was situated, alleging a right and interest in protecting the musjid, filed a plaint asking for declarations that the property mortgaged to defendant No. 2 was wuqf property, that the auction-purchase thereof made by defendant No. 3 and the ijara and mortgage were invalid; and that another mutawalli might be appointed. Prinsep, J., after dealing with various points, which it is not necessary here to notice, says at page 40: 'We now come to deal with the other prayers in the plaint, which do hot fall within the provisions of Section 14 of the Religious Endowments Act. These prayers are that the property mentioned in the schedule to the plaint may be declared to be wuqf; that the mortgage, and the ijara and the sale under the mortgage may be set aside; and that a competent person may be appointed by the Court as mutawalli. Now, so far as regards these prayers we think that the plaintiffs were not authorized to institute this suit by reason of their having an interest created by their being followers of the Moslem religion, and living in the vicinity of the mosque, and being in the habit of attending the musjid. That interest is common to them with all the Mahomedan residents in the vicinity, and we think that this is a case which falls within the provisions of Section 30 of the Code of Civil Procedure. It may be quite possible that if these plaintiffs had applied to the Court under the provisions of Section 30, they would have obtained permission to institute this suit, but not having obtained that permission, they certainly were not entitled to institute this suit.'
10. I cannot see any distinction between the position of the plaintiffs in that case and that of the plaintiffs in this suit. 'The other unsatisfied creditors of Heeralal deceased' appear to me to correspond with 'all the Mahomedan residents in the vicinity' mentioned by Prinsep, J.
11. I am therefore of opinion that Mr. Palit's objection is a valid one, and that the suit cannot proceed.
12. I have now to consider what I ought to do-whether to dismiss the suit or to yield to Mr. Pugh's application to grant permission for its institution nunc pro tunc, and to adjourn the hearing until the requisite notices have been given. I am anxious not to dismiss the suit after so much expense has been incurred, but I do not think I have the power to grant permission at this stage. I would do so if I thought I had the power. I must therefore dismiss.