1. This rule was issued at the instance of Prince Victor Narayan, defendant 9, in a suit pending in the Court of Subordinate Judge of 24-Parganas, who has now been declared a bankrupt under the English Bankruptcy Act. The rule is in these terms:
Why the order striking out the names of defendant 9 mentioned in the petition should not be set aside and why the trustee in bankruptcy should not be brought on the record in place of defendant 9 referred to in the petition.
2. With regard to the second portion of this rule, it may be mentioned that there is no application before us either on behalf of the bankrupt or on behalf of the trustee in bankruptcy that such trustee should be substituted in place of defendant 9 in the suit.
3. The main question that has been argued before us is as to the propriety of the order of the learned Judge striking off the petitioner's name from the suit. A short history of this litigation may be useful in considering the nature of the objection. The suit was brought by plaintiff 1 and one Uday Narayan as plaintiff 2 for declaration of their title to Bijni Raj and for other reliefs. The cases of the plaintiffs were not founded on the same right, plaintiff 1 claiming to be the next heir to the late Raja under the ordinary rule of primogeniture and plaintiff 2 claiming the game right under the rule of lineal primogeniture. The prayer in the plaint was that a decree might be passed in favour of either of the plaintiffs. Subsequently the plaintiffs fell out and there was an application by both the plaintiffs that one of them ought to go out of the suit. Before that application was heard, Uday Narayan had sold his interest in the estate to defendant 9 the petitioner before us. The question as to who should have the conduct of the suit was considered by the learned Subordinate Judge and he ordered that plaintiff 1 should remain on the record as plaintiff and have the carriage of the suit and that plaintiff 2 should be translated to the category of defendants. Plaintiff 2 died and in his place were substituted his son and defendant 9. Subsequent to that, the plaintiff applied that the only point that remained to be tried in the suit was the claim of plaintiff 1 as against the principal defendant being defendant I who is now in possession of the Raj; and that being the point for consideration in the suit, the issue which was framed with regard to the alternative right of the two plaintiffs originally on the record should be expunged. That issue which was issue 17 was in these words:
Is the plaintiff 2 the eldest representative of the elder branch of the Bijni Raj family as alleged? Did he over become and is he entitled to possession?
4. The Court ordered the issue to be expunged. So at present there is no dispute between the plaintiff on the record on the one side and defendants on the other except with reference to the right claimed by the plaintiff based upon the ordinary rule of primogeniture. Defendant 9 was, however, kept on the record the reason for that being that when the plaintiff 2 was transposed to the category of the defendant the Court had ordered that if plaintiff 1 failed to furnish security he would lose the privilege given to him and in that case defendant 9 should be allowed to continue as the sole plaintiff. The security as ordered by the Subordinate Judge and as subsequently settled by this Court was furnished.
5. In April 1928 the petitioner was adjudged bankrupt in England. Thereafter the plaintiff made an application to strike off his name from the list of defendants. The learned Subordinate Judge has held that defendant 9 being a bankrupt, cannot continue as a party to the suit and has thereupon ordered that the name of defendant 9 be removed from the record. Against this order the present rule has been obtained.
6. The question, therefore, that falls for consideration is whether because of the bankruptcy of the petitioner he should no longer be retained as a defendant in the suit or whether the order of the Subordinate Judge in the circumstances of this case striking his name off is not correct. There can be no dispute that under the English Law a person being adjudged a bankrupt, all his properties personal and real, vest in the trustee under Section 53, Bankruptcy Act, 1914. The real properties which vest in the trustee in bankruptcy may be properties situated in England or elsewhere, Section 167. The law on this point has been widened by the Act of 1914, for previous to it property which vested in the trustee was property within the dominions of His Majesty and, before that it was property which situated in Great Britain. Unless there is anything repugnant in the lex loci where the property is situate, the property where-ever it may exist, is assigned to the trustee in bankruptcy by virtue of the order of adjudication : see Williams Bankruptcy Practice, Edn. 13, p. 264, and Dicey's conflict of Laws, Edn. 4, p. 368. That being so, the property in dispute to which defendant 9 claims to have acquired some right, under his purchase from Uday Narayan, now vesta in the trustee in bankruptcy. The petitioner, therefore, has no right left in the property and therefore he is not a proper party to the suit relating to that property. But it has been argued by the learned advocate appearing for him that the plaintiff should bring the trustee in bankruptcy on the record; and reference is made to Order 22, Rule 10, Civil P.C. That rule enables the plaintiff to apply in the case of evolution of interest during the pendency of the suit either by assignment or otherwise, including insolvency, to bring on the record in place of the defendant insolvent his trustee in insolvency. But it casts no duty upon him if he thinks that the suit can go on without the insolvent defendants. In fact the section makes it discretionary with the Court to allow such an application in the circumstances of a particular case, Lakshman Chunder Dey v. Nikunja Mohini Dasi 0065/1923 : AIR1924Cal188 . And that discretion has been exercised by the Court below by striking off the petitioner's name from the lists of defendants. We cannot say in revision that the order passed by the Court below in the circumstances of this case is so erroneous as to entitle us to interfere with it. There are several practical difficulties in the way. If the insolvent defendant is allowed to remain on the record and fight the suit and if the suit is decreed, the plaintiff will be deprived of his costs against the insolvent and the decree which he may obtain will not be binding on the receiver or trustee of the insolvent Kala Chand Banerji v. Jagannath Marwari . Unless the law casts a duty upon the plaintiff to bring the receiver or trustee on the record it cannot be said that the insolvent must be represented in the suit. He has. certainly no right to remain on the record as a defendant and he cannot insist that he must remain on record through his trustee. If his absence from the list of defendants vitiates the constitution of the suit, the plaintiff will have to take the risk of it. We are accordingly of opinion that the order passed by the lower Court should be maintained and this rule discharged.
7. A preliminary objection was taken on behalf of the opposite party as to the competence of the insolvent to make this application in this Court. It is not necessary to consider this point in view of the fact that this Court issued the rule under Section 115 which does not require the appearance of any party.
8. The undesirability of allowing the defendant who is an insolvent to remain on the record is evident as we are unable to award any cost in favour of the successful party.
9. Let the record be sent down as early as possible.