1. This is an appeal against an order of the Subordinate Judge of Bankura, dated the 26th of September 1899.
2. The facts of the case are these. A suit for arrears of rent was brought by one Bishnu Churn Kaviraj, the Manager of the Dhalbhoom encumbered estate, against the defendant, Raja Sir Sourindra Mohun Tagore. During the pendency of the suit the estate in question was released from the management of buBishnu Churn Kaviraj and an order was passed by the Deputy Commissioner directing the proprietor of the property to take over charge of it. The question then arose as to who was to carry on the suit against Raja Sir Sourindra Mohun Tagore. The Ranis of Raja Ram Chunder Deo Dhabal Deb applied to be made plaintiffs under Section 372; and an order was passed to that effect by the Subordinate Judge.
3. The defendant, Raja Sourindra Mohun Tagore, now appeals to this Court and contends that the Subordinate Judge was not right in disallowing his objections to the substitution of the Ranis as plaintiffs in the suit.
4. A preliminary objection has been taken to the hearing of this appeal on the ground that there is no appeal from an order passed under Section 372 of the Code of Civil Procedure, and that the provisions of Section 588, Clause 21, Code of Civil Procedure, only allow an appeal against an order disallowing objections. That may be so. But we think that the order of the Subordinate Judge, disallowing the objection, is practically the same as his order substituting the Ranis as plaintiffs; and therefore we do not think that the appellant is prevented from appealing to this Court by the somewhat ambiguous terms of Clause 21 of Section 588, Code of Civil Procedure.
5. Three pleas have been urged by the learned pleader for the appellant (i) That the provisions of Section 372, Civil Procedure Code, are not applicable to the facts of this case; (ii) that there is a Privy Council order directing that the Manager of the Dhalbhoom encumbered estate should continue in the management of the estate; and (iii) that the Raja Sourindra Mohun Tagore purchased the interests of the three Ranis and therefore the suit cannot proceed at their instance.
6. As to the first of these contentions we would say that we think that the provisions of Section 372, Civil Procedure Code, are applicable to this case. It is true that there has been no assignment of interest. But it appears to us that there has been a devolution of interest pending the suit. Under the provisions of Section 16 of Act VI of 1876, so long as the property remains under the management of the Manager, the proprietors cannot sue or recover rents. The Manager only can do so; and now that the Manager has been removed, it seems to us that there has been a devolution of the right to realize and recover rents from the Manager to the proprietor of the estate.
7. The learned pleader for the respondent argues that words 'devolution of interest' in Section 372, Civil Procedure Code, apply to devolution of interest by death, and he cites certain English cases to show that this is the interpretation put in England upon these words. But the Code of Civil Procedure does not prevail in England, and we must interpret its terms as best we may without reference to English cases. In our opinion the words 'devolution of interest' in Section 372 are not used in a technical sense, because the latter part of the section speaks of such interest coming to a person 'either in addition to or in substitution for the person from whom it has passed, as the case may require.' From the use of the word 'come' in the latter part of the section it would appear that the words 'devolution of interest' in the first part of the section do not mean only devolution by death.
8. Then, with regard to the second contention of the learned pleader for the appellant, it appears that the Subordinate Judge in his judgment says that their Lordships of the Privy Council have by an interlocutory order passed in the case of Mohesh Chunder Dhal v. Satrughan Dhal (1899) I.L.R. 27 Cal. : C.W.N. ccxcvii: L.R. 26 I.A. 381 directed that the Dhalbhoom estate should continue to be under the management of the Manager. But we do not think that we are entitled to refer to the Calcutta Weekly Notes for such an order, or to take cognizance of such an order as is said to have been passed in the report of the Calcutta Weekly Notes. No copy of any such order has been filed on the record, and we cannot act upon the order unless it is so filed. We are entitled to refer to reports of cases as precedents, but if an order is meant to be operative in a particular case, that order must be produced and filed in the record of that case.
9. Then, with regard to the appellant's third plea, it appears to us that the Subordinate Judge has only made the three Ranis provisional plaintiffs. For he has, subsequent to the order making the Ranis plaintiffs, framed three issues in the case which are to be found at page 20 of the paper-book of appeal from Original Order No. 348 of 1899. These are: '5th, whether Rani Siromoni has sold her rights to the zemindari to the defendant, and whether she is entitled to any one; 6th, whether the suit can proceed at the instance of the other two Ranis; 7th, whether the Ranis Padmabati and Churamoni have relinquished their rights to the zemindari in favour of Rani Siromoni, and whether the latter has sold the same to the defendant.'
10. Now we do not understand that the Subordinate Judge has by his order meant to exclude the defendant from giving evidence in support of these issues, and certainly the order of the Subordinate Judge must not be considered as having that effect. These issues must be tried in the course of the trial; and should it appear that the interest of the three Ranis has passed to the defendant, their names must be removed from the category of plaintiffs; or if the interest of any one of the Ranis has passed to the defendant, her name must be removed therefrom. In the meanwhile, the order of the Subordinate Judge making the Ranis provisional plaintiffs appears correct.
11. This appeal, therefore, fails and we dismiss it with costs, which are to be divided equally between the two sets of respondents.