1. This is an appeal arising out of a suit to recover rent in arrears. Three persons were originally joined. They were three tenants. There is not a word in this ease that they are the heirs, or are holding the property as the heirs, of the former owner. The case against them is that they are three tenants on the land and they are liable to pay. It is quite true that they are brothers and, therefore, they would have a common ancestor; but the suit was not framed on that ground, nor was that the question in debate in the lower Courts. In this case the defendant No. 1 was adjudicated an insolvent under the provisions of the Provincial Insolvency Act prior to the institution of the suit. There seems to be a little misunderstanding in the lower Courts as to the effect of the insolvency. The first defendant was stated as being represented by a Receiver, the Nazir of the Alipore Judge's Court. That was not a strictly accurate position either. A Receiver under the Provincial Insolvency Act is exactly in the same position as the trustee in bankruptcy. The whole property of the insolvent is vested in him and he is the owner of the property until he is discharged. In the present case, the it learned Judge of the lower Appellate Court seems to have considered that the plaintiff was in contempt in instituting this suit against the Receiver without the previous sanction of the Judge having the carriage of the proceedings in which the Receiver had been appointed. That is obviously a mistake. That rule only applies to cases where the Receiver is appointed in an action and does not apply to a Receiver as mentioned in the Provincial Insolvency Act, who is really what is known in the old English Law as an Assignee in bank, ruptcy. There is nothing in that point. What happened is this. The suit was dismissed as against the insolvent and decreed as against the solvent tenants. It is said that the defendants are entitled to plead in abatement and as the suit has not been successful as against the insolvent, therefore, it must be equally unsuccessful against the solvent tenants. The law in England dearly was not so under the old form of pleadings. Replication to a plea of non-joinder that a co contractor was discharged by bankruptcy or an order of discharge was a perfectly good replication to a plea in abatement. It is no answer to the plaintiffs' claim against the defendants Nos. 2 and 3 that if one of the co-contractors becomes an insolvent the other persons are not liable to pay the rent. In my opinion, the conclusion arrived at by the learned Judge of the lower Appellate Court is correct. The present appeal, therefore, fails and mast be dismissed with costs to be paid by the defendants Nos. 2 and 3. The insolvent must make such arrangement as he thinks fit. for the payment of his own costs.
2. Any rights that the defendants Nos. 2 and 3 may have under the provisions of the Provicial Insolvency Act to prove against the estate of the insolvent, if and when they pay and satisfy the decree, will not be prejudiced by the present judgment.
Nos. 3307 and 3308 of 1915.
3. These cases will be governed by the judgment that has just been delivered in Appeal No. 3026.