Lawrence Jenkins, C.J.
1. The suit out of which this appeal arises is one brought against Mr. Osmond Beeby, at one time the administrator pendente lite of the estate of one Dakhina Mohan Roy. The purpose of the suit is to recover from him five sums mentioned in the plaint with interest, on the ground that they have been wrongfully retained by him and that the retainer is wrongful inasmuch as it is, according to the plaintiff, in excess of the remuneration to which he was entitled under the order ap-pointing him administrator pendente lite.
2. The facts on which the plaintiffs base their claim are set out clearly and minutely in the plaint. A written statement has been filed which puts in issue these facts and suggests a complexion of the case that would, (it is contended), if established, constitute an answer to this claim. Now, it so happens that the defendant, who was practising here as an Advocate at the time that he was appointed administrator pendente lite, has since retired from India and now lives in England. In view of this fact, the Attorneys on both sides seem to have come to an agreement, a very proper agreement in view of the circumstances of the case, that the opinion of the Court should be sought, as to whether the plaint was one on which a decree could be passed in favour of the plaintiff, having regard to the circumstances either there set out or there indicated.
3. The case was accordingly put down, as it is termed in this Court, for settlement of issues, but there was no such agreement as is contemplated in Order XIX, Rule 6, and it is, therefore, difficult to see how the case, as it came before the Court, could be dealt with otherwise than on the lines that there should be a consideration and determination as to whether the plaint disclosed a cause of action. It was suggested to us by Mr. Knight, who pressed the case of his client, the defendant, with some insistence, that there was a wider investigation open to the Court, but I must confess my inability to follow it, because in the absence of such an agreement as indicated in Rule 6, I do not see how the Court can properly deal with a matter of this kind except on the allegations in the plaint. This is the view apparently that commended itself to the learned Counsel, a very experienced Counsel, who appeared for Mr. Beeby in the Court of first instance, for I find from the Court notes of the proceedings, that Mr. Mitter 'on this proceeding raises the issue whether the plaint discloses any cause of action. If that fails, the other issues may be tried on the trial of the case on facts.' Then Mr. Mitter submitted that the plaint disclosed no cause of action. That I, think, is the only legitimate matter for our consideration on the present application. The learned Judge, Mr. Justice Haringhon, decided adversely to the plaintiffs and it is from that judgment that the present appeal has b9en preferred.
4. The position of Mr. Beeby as administrator pendente lite is not disputed. It is, further, the plaintiffs' case and I do not know that it is contested, that funds came into his hands as administrator pendente lite. If that be so, it is clear that he is responsible for the application of those funds. What, then, is the ground on which it can be said that the plaint discloses no cause of action?. It is because the plaint either states or indicates that the accounts of the administrator pendente lite were passed by the Court in accordance with the procedure which is commonly adopted on the original side of this Court, and on the performance of that condition, the preceding order discharging him, whatever that may mean, from further acting as administrator pendente lite became absolute and operative. The contention, therefore, must be that this passing of the accounts as disclosed by the plaint constitutes a complete bar to the suit. In the view that I take of the case, I think it desirable that I should not enter into a general discussion of this case so as to in any way prejudice its merits or the various questions which will arise before it can be finally determined. I would, therefore, limit myself to saying that the mare fact that the administrator pendente lite may have been discharged from further acting as administrator pendente lite on passing the accounts in the testamentary jurisdiction, does not, in the circumstances of this case, operate as a discharge so as to constitute a bar to this suit which is brought in the general jurisdiction of the Court. There may be other excellent defences to this suit but with that we have nothing to do at this stage.
5. We must, therefore, allow the appeal, set aside the decree of Mr. Justice Harington, and remand the case to the Court of first instance for a further re-hearing.
6. We think, in the circumstances, the costs of this appeal and the suit must be costs in the cause.
7. I agree.