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Baroda Prosad Roy Chowdhry Vs. Bhoopendro NaraIn Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal500
AppellantBaroda Prosad Roy Chowdhry
RespondentBhoopendro NaraIn Dutt and ors.
Cases ReferredCommissioners of Hurro Chunder Roy Chowdhry v. Sooradhonee Debia B.L.R. Sup. Vol.
Excerpt:
court of wards act (bengal act ix of 1879), sections 20, 51-55 'suit.' - application for execution by collector on behalf of ward, when manager of ward's estate has been appointed. - .....act itself which militates against this conclusion. it is an act passed placing the property of wards and wards' litigation exclusively in the power of the court of wards (and there are reasons which make it desirable for the court of wards, and the court of wards alone, to have the initiation of litigation under its control), and applies as much to miscellaneous proceedings initiated on behalf of a ward as to regular suits. we think therefore that the word 'suit' in this act covers an application of the nature now before us in which the ward for the first time socks to have the carriage of the litigation.10. the next point argued is that the application has not been made by the manager and that as this informality was objected to at the beginning of the suit, the application should.....
Judgment:

O' Kinealy and Ameer Ali, JJ.

1. This appeal arises out of an application for the execution of a decree passed by the Subordinate Judge of the 24-Pergunnahs on the 18th August 1890.

2. Haro Prosad Roy Chowdhry obtained a decree against the appellant and others. He died, and his mother, claiming under a will, took out probate and got her name registered under Section 232 of the Civil Procedure Code as the Representative of Haro Prosad. Subsequently, the will was set aside, and the estate then passed to Baroda Prosad Roy Chowdhry, the son of Haro Prosad, and who is now a minor under the Court of Wards. The minor, through the manager under the Court of Wards, applied to have his name entered in the execution proceedings, and to have the proceedings revived in the Court of the First Subordinate Judge of Alipur. That application was allowed, but on appeal to this Court it was rejected on the ground that the application should have been made to the Court which passed the decree, and not to the Court to which the decree had been sent for execution. After that, an application was made to the Court of the Second Subordinate Judge of Alipur by the Collector of the 24-Pergunnahs on behalf of the minor on the 18th June 1890, to have his name registered and execution to issue. Notice was served on the judgment-debtor, and the judgment-debtor, who is the appellant before us, appeared and raised several objections. The chief among them were that the application was barred by lapse of time; and, not having been made by the manager of the ward's estate, but by the Collector of the district, who had no power to make any application on behalf of the minor as long as the manager existed, it should be dismissed. These answers were not considered sufficient by the Subordinate Judge, and he allowed execution to issue.

3. The judgment-debtor, dissatisfied with this order, has appealed to this Court, and has raised the same defence before us as was raised by him in the Court below.

4. We think that so far as the question of limitation is concerned, the appellant ought not to succeed. Admittedly, if the decree-holder is entitled to the benefit of Section 14 of the Limitation Act, and allowance is made for the time during which he prosecuted the former application, the present application is not barred. We agree with the Subordinate Judge in considering that he is entitled to the deduction claimed. The application was dismissed in this Court on the ground that it was made to a Court which had no jurisdiction to receive it. We do not acquiesce in the argument of the learned Counsel for the appellant that the litigation in that case could not have been carried on in good faith. Looking at the judgment of the first Court, and the circumstances surrounding that litigation, we think it could, and we concur with the Subordinate Judge in allowing the respondent the benefit of that deduction.

5. But in regard to the question whether the Collector was justified in making the application, we regret that we differ from the Subordinate Judge. Under Bengal Act IX of 1879 the Board of Revenue is the Court of Wards. By Section 20 it can appoint one or two managers of the property of a ward, who is quite a different officer from the guardian of the person of a ward. Sections 39 and 40 enumerate the duties and powers of managers; and so far as general management is concerned, when no manager has been appointed the Collector of the district in which the greater part of the property is situated can manage the property. By Section 51, in every suit brought by or against any ward, he must be described as a ward of Court; and the manager of such ward's property, or, if there is no manager, the Collector of the district in which the greater part of such property is situated, or any other Collector whom the Court of Wards may appoint in that behalf, shall be named as next friend or guardian for the suit, and shall in such suit represent such ward. This is the general mode of describing the persons who can appear for a ward.

6. Under Section 52 power is given to the Court of Wards by an order to nominate or substitute any other person to be next friend or guardian for any such suit; and if the order be one for substitution, the Civil Court, on the presentation to it of a copy of such order, is bound to carry out the order of the Court of Wards.

7. Section 55 declares that 'no suit shall be brought on behalf of any ward, unless the same be authorized by some order of the Court'.

8. Looking at all these sections, it seems to us that the Legislature has declared that only a manager, or a Collector, or some special person appointed by the Court of Wards, can file original suits on behalf of a ward, and represent, the ward throughout the whole of the litigation.

9. It has been argued before us by the Counsel for the respondent that the word 'suit' in that Part, i.e., Part VII of Bengal Act IX of 1879, must mean what is usually called a 'regular suit', and cannot refer to proceedings of the nature now before us, in which the ward seeks to have his name substituted for that of his mother, and the decree obtained by his father executed. We regret that we are unable to accept this argument. The word 'suit' in this Act has not the narrow significance attached to the word 'action' in English Law; and as Sir BARNES PEACOCK pointed out in a Full Bench decision of this Court it embraces all contentious proceedings of an ordinary civil kind, whether they arise in a suit or miscellaneous proceedings. That too, was the opinion of a Division Bench of this Court in the case of Shurut Soonduree Debia v. The Collector of Mymensingh 7 W.R. 221 where it was decided that the Court of Wards has full control over miscellaneous proceedings in execution of decree. Nor can we find anything in the nature of the Act itself which militates against this conclusion. It is an Act passed placing the property of wards and wards' litigation exclusively in the power of the Court of Wards (and there are reasons which make it desirable for the Court of Wards, and the Court of Wards alone, to have the initiation of litigation under its control), and applies as much to miscellaneous proceedings initiated on behalf of a ward as to regular suits. We think therefore that the word 'suit' in this Act covers an application of the nature now before us in which the ward for the first time socks to have the carriage of the litigation.

10. The next point argued is that the application has not been made by the manager and that as this informality was objected to at the beginning of the suit, the application should have been dismissed, The manager under the Court of Wards is appointed by the Court of Wards under powers given to it by statute. The Court, no doubt, has complete control over such matters, but its duty is sot forth in the Act, and its position seems to be that of a public officer appointed under statute. In this case a manager was appointed; but it is said that previous to the application being presented he had taken leave, and that the Collector of the 24-Pergunnahs was the proper person to make the application. We think that the office of manager did not become vacant because the manager obtained leave; and if it is not vacant, Section 51 of the Wards' Act does not enable the Collector to appear on behalf of a minor. The Court of the Subordinate Judge of the 24-Pergunnahs had jurisdiction over the subject-matter of the litigation, and although the application may not have been properly initiated, still it might well be that if a proper application had been made after the death of the manager, who, we are told, died before the Subordinate Judge gave judgment in this case, much of the existing difficulty in the case would not have been experienced. When the manager died, what happened when he died, we are unable to say. Indeed, in this and in many other points we have been unable to obtain any information from the papers. Moreover, it may well be, for aught we know, that the Collector was appointed by virtue of the Rules issued by the Board of Revenue to Commissioners of Hurro Chunder Roy Chowdhry v. Sooradhonee Debia B.L.R. Sup. Vol. 988 (990) sub-divisions under Section 52 of the Act as a special person to carry on this litigation. But in truth, no evidence was taken in the Court below, and there is nothing before us on which we would be justified in coming to any determination.

11. We, therefore, direct that the records be returned to the Subordinate Judge of the 24-Pergunnahs in order that he may hear evidence and determine: first, when the manager took leave: secondly, on his taking leave, what, if any, arrangements were made for the management of the property and for the carrying on of litigation; thirdly, if any such arrangement was made, was it made under the order of the Court of Wards, and if not, by whom; fourthly, when did the manager die; and fifthly, after his death what arrangements were made for the management of the property and the carrying on of the litigation of the ward, and by whom.

12. The Judge will submit to this Court his finding on the issues above indicated, together with the evidence recorded on those issues, within a month from the date of the receipt by him of the record, and will, at the same time, return the record.

13. The case will remain on the file of this Court.


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