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Samarendranath Mitra and ors. Vs. Pyareecharan Laha - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1935Cal160,155Ind.Cas.882
AppellantSamarendranath Mitra and ors.
RespondentPyareecharan Laha
Cases ReferredRead v. Brown
Excerpt:
- costello, j.1. the facts, out of which this appeal arises, are set forth in the early part of the judgment of buckland, j. in order to make it clear however how it came about that only certain issues were decided by the learned judge it is necessary that i should recite some of the salient facts. in the year 1931, one krishnakatyayanee mitra became entitled to the estate of her grandfather, kumarkrishna deb, in the right of a hindu lady. it is said that her husband, asokenath mitra, was a man of dissolute habits, who had dissipated the properties which he had himself inherited from his own father. the story is that krishnakatyayanee mitra was induced by her husband, asokenath mitra, to borrow various substantial sums of money and to create mortgages and other securities on the estate.....
Judgment:

Costello, J.

1. The facts, out of which this appeal arises, are set forth in the early part of the judgment of Buckland, J. In order to make it clear however how it came about that only certain issues were decided by the learned Judge it is necessary that I should recite some of the salient facts. In the year 1931, one Krishnakatyayanee Mitra became entitled to the estate of her grandfather, Kumarkrishna Deb, in the right of a Hindu lady. It is said that her husband, Asokenath Mitra, was a man of dissolute habits, who had dissipated the properties which he had himself inherited from his own father. The story is that Krishnakatyayanee Mitra was induced by her husband, Asokenath Mitra, to borrow various substantial sums of money and to create mortgages and other securities on the estate which she had acquired from her grandfather, in order that the personal debts of her husband might be paid off, and also to provide him with funds for what is described as his 'evil propensities.' It is said that the result of these operations was that Asokenath Mitra and his wife were in such financial straits that they, in conspiracy with an attorney named N.C. Mandal, and a man named Amalkanta Sarkar, who was their son-in-law, entered into various projects for the purpose of raising large sums of money for discharging the antecedent liabilities whereby their infant sons were deprived of the interest which they would eventually have acquired upon the cessation of their mother's estate.

2. On 25th March 1927, Amalkanta Sarkar was appointed guardian of the person and property of the present plaintiffs, the two sons of Asokenath Mitra and Krishnakatyayanee, who are minors. Amalkanta Sarkar was ostensibly appointed for the purpose of safeguarding the reversionary interest of the plaintiffs in the property. The conspiracy alleged may be described thus: The solicitor N.C. Mandal, advised Asokenath Mitra to induce Krishnakatyayanee to surrender her interest in her grandfather's estate to the minors, which was done, and the solicitor arranged for a loan on the security of a mortgage of the properties. It is said that the defendants, Pyareecharan Laha and Anandacharan Laha, are relations of the solicitor. The surrender having been made, the solicitor then filed a petition on behalf of the then guardian of the plaintiffs, Amalkanta Sarkar, before the District Judge of the 24-Parganas, and obtained permission to raise a loan of Rs. 2,50,000 on behalf of the minors by means of mortgage of the properties. That was done on 16th August 1929. On 22nd September 1929, another petition was put in before the District Judge of 24-Parganas asking for approval of the draft mortgage to be prepared in favour of the Laha defendants. On 27th September 1929, a deed of surrender and a mortgage-deed for Rs. 2,50,000 in favour of the Laha defendants was executed by Amalkanta Sarkar. Part of the allegations against the defendants is that the whole of the money was retained by the solicitor defendant, N.C. Mandal, and that no part of it came into the hands of Amalkanta Sarkar, as guardian of the minors.

3. It was, subsequently, found that the surrender might not have been entirely valid in law because certain portions of the property inherited by Krishnakatyayanee Mitra had not been included in the original deed of surrender. Consequently, on 5th October, she executed an instrument which has been referred to as a Deed of Rectification of the Deed of Surrender. I would pause here to say that it is not material for our present purpose to discuss the question which might have arisen as to whether a surrender of this kind was properly within the contemplation of the provisions of Hindu law. That point has not been taken. But the surrender is challenged on the ground that the whole matter was in the nature of a plot to deprive these minors of their reversionary rights in regard to the property.

4. On 12th April 1930, the attorney, N.C. Mandal, again made an application to the District Judge, 24-Parganas, and on that occasion asked for permission to raise a further loan of Rs. 80,000 also on the mortgage of the estate. It was, in fact, a second mortgage of the same property as that comprised in the mortgage to the Lahas. It is said that as a result of that transaction, the solicitor defendant received for his own benefit a sum amounting to Rs. 44,000 and that Amalkanta Sarkar, the then guardian, and Asokenath Mitra, the father of the minors, also received large sums for their own purposes. The allegations made by the minors against their parents and their guardian and the attorney relate to the transactions I have just described.

5. After an interval of a few months-about the 12th November 1930-the Lahas instituted a suit on the mortgage to them and that was suit No. 2090 of 1930. In that suit, they made Krishnakatyayanee a defendant and also Lakshmeenarayan Kshettree who was a second mortgagee, the man who had lent the Rs. 80,000. On 22nd November 1930, Amalkanta Sarkar, who, as I have already said, had been appointed guardian of the person and the properties of the present plaintiffs on 25th March 1930, was appointed guardian-ad-litem of the minors in the mortgage suit and for the purposes of that suit, and that it is an important fact to be borne in mind, having regard to what transpired subsequently. On 30th April 1931, a man named Asheshnath. Mitra, who is also some kind of relation of the present plaintiffs, made an application to the District Judge of the 24-Parganas at Alipore, asking for the removal of Amalkanta Sarkar from the guardianship of the minors' on the allegations that he was neglecting and disregarding their interests and had in effect worked hand-in-hand with the parents of the minors and this solicitor N.C. Mandal, to defraud the minors of their properties. On that date, an order was made appointing Asheshnath Mitra guardian provisionally. It was also directed that the eldest of the three minors (there were three at that time) who was aged about 20, should appear before the Court.

6. Then, on 5th May 1931, the suit with which we are concerned was instituted by the minors, the present plaintiff's and their elder brother, through their next friend and guardian, Asheshnath Mitra. It is to be noted that at that time he was, strictly speaking, only provisionally the guardian. However, he instituted a suit, which is suit No. 936 of 1931, asking for a declaration that the four instruments I have mentioned, viz.. the deed of surrender, the first deed of mortgage, the deed of rectification, and the second deed of mortgage were of no effect and invalid in law and for an order setting aside those instruments On the same day, an application was made in that suit by the minors through their guardian. This application was made by the minors for an injunction restraining the plaintiff's in the mortgage suit, that is to say, the Lahas and the Kshettrees, from proceeding with their suit, and on the application an interim injunction was granted. On 7th May, an order was made appointing Asheshnath Mitra as guardian of the minors, subject to his furnishing security as specified and directing the removal of Amalkanta Sarkar from the guardianship which he previously held. On that date, the eldest of the three minors appeared before the Court and apparently expressed some opinion in the matter. On 14th May the matter of the application in suit No. 936 made for the purpose of staying the mortgage suit, came again before the Court and on that occasion an order was made without prejudice to the rights of the parties in suit No. 936 of 1931, that the mortgage suit, being No. 2090 of 1930, should be proceeded with. The mortgage suit, apparently, was pursued in the usual course.

7. On 14th May 1931, a preliminary decree, was made in the mortgage suit. The mortgage suit was in fact not defended and the usual preliminary decree was made. One of the allegations in the present suit, in effect, is that the mortgage suit was allowed to go undefended, owing to the deliberate action or rather abstention of the guardian-ad-litem, Amalkanta Sarkar. What is complained of with regard to that decree is that the mortgagees ought to have made it their business to have substituted Asheshnath Mitra in place of Amalkanta Sarkar, as guardian-ad-litem of the minor defendants. On 9th June 1931, Asheshnath Mitra definitely became the guardian of the person and property o the minors having satisfied the District Judge with regard to the matter of the security which he had been directed to furnish. It is clear therefore at any rate, as from 9th June 1931, Asheshnath Mitra was in a position to take such steps as he thought fit in the interest of the minors.

8. On 24th July 1931, suit No. 936 of 1931 was dismissed for want of prosecution. It was said that Asheshnath Mitra had to go away to Benares owing to the llness of his mother. That is the explanation given on behalf of the plain tiffs. On the other hand, it was suggested, on behalf of the defendants in the present suit, that what really happened was that the non-appearance of Asheshnath Mitra was really consistent with, and indeed in pursuance of, the whole conspiracy. It is suggested that Asheshnath Mitra was really acting in conjunction with the parents of the minors, and with the solicitor in getting himself made a certificated guardian, in order that he might then accuse the other conspirator, Amalkanta Sarkar, of having betrayed the interests of the minors in connexion with the antecedent transaction. I am bound to say, speaking for myself and looking at the matter in due perspective, that one can-cannot altogether be free from a suspicion that may have been the true state of affairs. We are however not concerned with that aspect of the matter at the present stage.

9. On 13th May 1932, a final decree was made by Ameer Ali, J., in the mortgage suit (No. 2090 of 1930), and at that time, so far as the records show, Amalkanta Sarkar was still the guardian-ad-litem of the infant defendants. Against that final decree there was an appeal, but that appeal was dismissed for want of prosecution on 2nd February 1933, and some three months later the eldest of the three minors, Sailendranath Mitra died. It is to be observed that the mortgagees had clothed themselves with full rights in the way of enforcing their mortgage as early as 30th June, or at any rate, 2nd February, when the appeal of the defendants was finally dismissed. One result of that appeal against the final decree was that the mortgagors had succeeded in staving off execution under the final decree for a period of some nine months.

10. Nothing more was done by the mortgagors until 29th June 1933, when the mortgagees were enforcing their security by bringing the mortgaged properties to sale, and on that date a rather curious thing happened. A suit was filed in the Alipore Court asking for a declaration that the decrees obtained in the mortgage suit No. 2090 of 1930, including presumably the decision of the Court of appeal, were void and the properties were not saleable in the execution proceedings and also for a perpetual injunction restraining the defendants, that is to say, the mortgagees, from putting the decrees which they had obtained to execution. One cannot fail to observe, in passing, that it seems somewhat strange that Asheshnath Mitra, acting for these minors, thought fit to take himself to the Court of a Munsif at Alipore, in order to challenge the decrees made by this Court. The defendants in that 'extraordinary' suit (it was extraordinary in more senses than one) took appropriate proceedings for having that suit transferred to the Original Side of this Court, and on 1st August 1933, there was an order transferring the suit on certain terms, one of which was that the defendants in the suit, the mortgagees, should provide a sum of money to enable the plaintiffs to pursue the suit in this Court.

11. On 17th August 1933, there was an order for amendment of the plaint which is of some importance, as some of the amendments clarified the attitude which the plaintiffs were taking up as regards the whole of the transactions entered into by their parents by the solicitors and by their former guardian. On 30th August 1933, an order was made in the suit that certain issues should be tried as preliminary issues, obviously a proper order in the circumstances, because, in one view of the matter, the determination of those issues might have put an end to the whole of the proceedings. It is in consequence of that order that the suit came before Buckland, J., and from his decision it now comes before us in appeal. The order was made by Panckridge, J., and he directed that the following issues should first be tried:

(1) Whether the minors are properly represented in Suit No. 2090 of 1930, (2) whether this suit is barred by res judicata and by principles analogous thereto, and (3) whether the suit is barred under Order 9, Rule 9, Civil P.C.

12. With regard to the first of those issues, the learned Judge came to the conclusion that there was no such defect in the form of the proceedings in suit No. 2090 of 1930, as would operate to make either the preliminary decree or the final decree obtained in that suit, invalid. The learned Judge puts the matter in this way:

On the first issue it is submitted that the minors are not properly represented because O, 32, Rule 4, Civil P.C., provides that where a minor has a guardian appointed by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers otherwise.

13. And then the learned Judge says:

The certificated guardian of the minors was undoubtedly appointed as their guardian-ad-litem at the inception of Suit No. 2090 of 1930, and there can be no question that at the time the minors were properly represented within the meaning of the section.

14. Mr. Roy has argued before us, on behalf of the plaintiffs-appellants, that as Asheshnath Mitra was appointed guardian of the person and property of the minor on 5th May 1931, and Amalkanta Sarkar was removed from the guardianship on that date, at the time when the mortgage suit came to trial, the minors were not properly represented in that Asheshnath Mitra had never been substituted in place of Amalkanta Sarkar. The learned Judge came to the conclusion that if a person has once been validly appointed guardian-ad-litem he remains such and properly represents the minors, or lunatics, as the case may be, unless and until he has been removed from the office of guardian-ad-litem. This point is of considerable importance. Mr. Ray was quite unable to put before us any direct authority on the point. I ventured to suggest to Mr. Ray that hitherto it has never occurred to any one seriously to argue that a guardian who has been properly appointed guardian-ad-litem ipso facto ceases to be guardian-ad-litem, merely because some other person has got himself appointed guardian of the person and property of the minors plaintiffs, by some other Court. I have mentioned the fact that in the present instance the guardian-ad-litem was appointed by this Court in Suit No. 936 of 1931. The certificated guardian was appointed by the Court at Alipore and it struck me as being somewhat remarkable and that it might lead to considerable inconvenience, if orders made by some other Court were to have the effect of abrogating orders made by this Court, in a pending suit. In my opinion, that position cannot arise however because I take the view that once a person has been properly appointed guardian-ad-litem, he can only cease to be guardian ad litem in one or other of the ways specified in Order 32, Rule 11 which says in Sub-rule (1).

Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.

15. Then in Sub-rule (2) it is provided that:

Where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place.

16. In my opinion, as there are no other direct provisions in the Code in the regard to this matter, it must be taken that there are only three ways by which a guardian ad litem can cease to function as such during the pendency of a suit: (1) by his retirement with the permission of the Court. It should be noted that under the old Code, even that was not allowed. (2) By his death and (3) by his removal by an order of the Court itself. It is to my mind of great significance in these proceedings that though Asheshnath Mitra got himself appointed certificated guardian by a Court at Alipore, he never came to this Court to ask for the removal of Amalkanta Sarkar from being guardian ad litem in Suit No. 936 of 1931, even though he was making before the Alipore Court very serious allegations as to the integrity and diligence of Amalkanta Sarkar. I think I ought perhaps qualify what I have said with regard to the termination of the office of guardian ad litem, during the pendency of a suit, by saying that it may perhaps be that if a guardian ad litem became of unsound mind, he might by reason of the provisions o Rule 4, Sub-rule (1) thereby become so disqualified that he would cease to act as guardian for the suit.

17. It is to be noted that the provisions of Sub-rule (1) are in general terms and they lay down that any person who is of sound mind and has attained majority may act as next friend of a minor or as guardian for the suit. I emphasize the words 'may act' because it is quite arguable from that phraseology that a person who ceases to be of unsound mind, can no longer 'act' as guardian for the suit. But what we are concerned with, in the present case, are the provisions of Rule 4, Sub-rule (2) and they are as follows:

Where a minor has a guardian appointed or declared by a competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.

18. Now the effect of that rule is that normally if a minor wishes to institute a suit and he has a certificated guardian then that certificated guardian is the right person to act as the next friend of the minor. If, on the other hand, a suit is brought against a minor who already has a certificated guardian then he is the person who must be appointed guardian for the suit unless the Court otherwise decides. That last proviso, to my mind, indicates that there is no inherent disqualification in all persons other than certificated guardian to be a guardian ad litem. In the present proceedings, at its inception, the suit was undoubtedly properly constituted because the person appointed guardian ad litem at the time when the suit was started was in fact the certificated guardian. Therefore the appointment was strictly in conformity with the provisions of Sub-rule (2). It seems to me that the mere fact that he subsequently ceased to be the certificated guardian, and somebody else was appointed in his stead, does not of itself impose such an absolute and fundamental disqualification that he automatically vacated his office and became functus officio. In my opinion, the only way of getting rid of a guardian ad litem who has once been properly appointed, is under the provisions of Rule 11, subject perhaps to the implications of Sub-rule (1). Rule 4, which I have mentioned. In that view of the matter, it follows that the decision of the learned Judge on issue 1 was correct. Buckland, J., then says:

It is further argued that the interests of Amalkanta Sarkar were adverse to those of the minors. As to that 1 express no opinion. This involves questions of fact, and questions of fact are not being considered at this period. The learned Advocate-General objects that the plaintiffs arc not entitled to take such point on their pleadings. As to that again, 1 express no opinion, and I leave it for determination by the learned Judge to whom may fall the duty of determining this case upon the facts should such occasion arise.

19. Now, that passage means this: The learned Judge held, and in my opinion rightly, that the question whether or not Amalkanta Sarkar had done his duty as a guardian-ad-litem, in the mortgage suit, was not a matter which was before the Court at that time, because it was not really comprehended within any of the issues which had been ordered to be tried as preliminary to the trial of the actual suit itself. The learned Judge was therefore right in saying that the question was not a matter with which he need concern himself. If as a result of his decision on the other points in the suit, the matter ultimately proceeded to trial, then that would be the proper time for the question of the conduct and the position of Amalkanta Sarkar to be gone into. Mr. Banerjee has argued before us, just as the learned Advocate-General has argued, that, in any event, this question was not properly raised on the pleadings in the suit and he referred to paras. 13 and 14 of the plaint which appear at p. 5 of the paper book. Paragraph 13 says:

That the plaintiffs state that defendant 5 was at all material times under the control and domination defendants 6 and 7 and he, having sacrificed the interest of the plaintiffs and their eldest brother for his own ends and the benefit of defendants 6 and 7, his interests became adverse to that of the minor plaintiffs and their brother.

20. Para. 14 says:

That having come to know that the guardian appointed by Court, i.e., defendant 5, is acting adversely to the interests of the minors, the present guardian applied to the Court of the District Judge, 24-Parganas, in Act 8, Case No. 57 of 1927, for removal of the said, guardian for appointment of a new guardian.

21. Now, looking at para. 13 by itself, it would seem that the allegation there was something in the nature of a suggestion that the guardian Amalkanta Sarkar had an interest in the property itself which conflicted with that of the minors; but there is undoubtedly in para. 14 an allegation in general terms that he was acting adversely' to the interests of the minors, and eventually the defendants took up the challenge contained in para. 14 as is shown by their denials in para. 6 of the written statement which are these words:

They do not admit the occasion for such appointment or that defendants, Amalkanta Sarkar acted adversely to the interest of the minors.

22. Upon that state of the pleadings, it does seem to us that there is or may be an issue to be tried as to whether or not this man, Amalkanta Sarkar, acted traitorously, or negligently, or faudulently in connexion with the minors' affairs and, in particular, in connexion with the mortgage suit. The other two matters, which were before Buckland, J., were in one sense interwoven, though in another way they were distinct. Those issues were in effect whether in regard to the issues in the suit, one ought to apply the principle of res judicata having regard to the matters in issue in Suit No. 936 of 1931, and whether the present suit is barred by reason of that Suit No. 936 of 1931 having been dismissed for want of prosecution, under the provisions of Order 9, Rule 9. Now the learned Judge took the view, and we think quite rightly, that properly speaking, no question of res judicata arises at all because the issues which were raised or might have been raised, in Suit No. 936 of 1931, were never tried out and there was no judicial determination on any of them. It is not necessary that I should quote any authorities in support of that proposition. As regards the effect of Order 9, Rule 9, the rule says:

Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.

23. It then proceeds to say:

But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal....

24. Although that is a procedure very frequently resorted to however, it was not taken in the case of Suit No. 936 of 1931. I have already indicated that the plaintiffs seem to have become quiescent after that suit had been dismissed, and that it was only after a considerable period that they eventually instituted the present suit. What we have to decide is whether the present suit is in respect of the same cause of action as Suit No. 936 of 1931. Now the learned Judge discussed the point at some length and he compared the allegations which were made in the plaint in Suit No. 936 with the allegations made in the plaint in the present suit and he said:

The first seven paragraphs of the two plaints are substantially the same.

25. And then he proceeded to discuss the subsequent paragraph and said:

Up to the point prior to the mortgage suits, there can be no question that the causes of action are identical.

26. But in regard to this suit he said:

In the present plaint... the suit is referred to and the decree is attacked in para. 21, but that is attacked on the ground of the conspiracy which in the earlier plaint was the ground of the conspiracy which in the earlier plaint was the ground of the attack upon the mortgages, and so far as there is any new cause of action in para. 21, it relates back to the subject-matter of the former suit. The only fresh grounds upon which the mortgage decree is attacked are to be found in para. 20, but that does not state any cause of action upon which the plaintiffs would be entitled to relief. Substantially, the whole matter now put in issue was the foundation of the former suit, and in these circumstances I hold that the suit is barred under Order 9 Rule 9, Civil P.C.

27. It may no doubt be the case that substantially the whole matter, now put in issue, was the foundation of the former suit. Looking at the matter from a non-technical and non-legal point of view, I have no doubt that any average person of ordinary commonsense would at once say:

are not the two suits to all intents and purposes the same; and that which the plaintiffs are now seeking to get is exactly the same kind of thing they sought to obtain in the previous suit.

28. That no doubt would be a sensible and reasonable view to take, but we have to administer the law as it is and we have to look at the matter having in mind the technicalities and niceties of adjectival law and the definitions of 'cause of action' which are to be found in the authorities. I do not propose to recite a concatenation of those authorities. It is sufficient I think, for the present purpose if I quote the well-known passage from Read v. Brown (1888) 22 QBD 128, where Lord Esher said, when he was referring to the meaning of the phrase 'cause of action arising':

It has been defined in Cooke v. Gill. (1873) 8 CP 107, to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court, it does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It has been suggested today in argument that this definition is too broad, but I cannot assent to this, and I think that definition is right.

29. Reference may be made to the case of Engineering Supplies, Ltd. v. Dhandhania and Co. 1931 Cal 659, where the Court of appeal, consisting of the Chief Justice and C.C. Ghose, J., upheld a judgment of my learned brother Lort-Williams in which he discussed the authorities and followed the principles laid down in Read v. Brown, (1888) 22 Q B D 128 supra. In one of the cases decided in India it was said:

The cause of action is a bundle of essential facts which it is necessary for the plaintiff to 'prove before he can succeed in the suit.

30. I think it is quite correct to define 'cause of action' as meaning all the congeries of facts which it is necessary for the plaintiff to establish before he can ask the Court to grant the relief which he claims in the suit. In the present case no doubt a greal of the averments in the plaint were merely reiteration, either in the same or other language of the averments in the plaint in Suit No. 936 of 1931. No doubt the basic factor in the plaintiffs' case, in the other suits, was what they have described as the conspiracy between their parents and their present solicitor and the former guardian, in connexion with the four transactions- two in connexion with the surrender of the property and two in connexion with the mortgages, but it is a fact that in their present plaint in para. 21 as amended, they have added this:

The plaintiffs state that the said ex parte decree and the final decree made in the said Suit No. 2090 of 1930 of the Honourable High Court were procured in pursuance of the conspiracy and were made without jurisdiction and are therefore a nullity and void ab initio.

31. It seems to be tolerably clear that, as regards the greater part of their case, the plaintiffs are relying on the original conspiracy but before they can get a declaration that the preliminary and final decrees in the mortgage suit are invalid, they will have to prove that those decrees were in fact made. It happens that the defendants have admitted the making of those decrees, but it would have been open to them to have denied that the decrees were made, that is to say, to traverse the plaintiffs' allegations in regard to the decrees, in which case, the fact of the making of the decrees would have been one which the plaintiffs would have been bound to prove in order to succeed in this suit. That statement of the position seems to bring the matter within the four corners of the definition of 'cause of action.' We therefore though speaking for myself with some hesitation, come to the conclusion that the view taken by the learned Judge cannot be sustained, and, as regards the technical point, we must hold that the suit is not barred by O. 9, R. 9, and that the cause of action is not wholly the same as that in Suit No. 936 of 1931, particularly having regard to the fact that there are averments with regard to a matter which had not even arisen at the time when the former suit was dismissed for want of prosecution, namely, the validity of the actual decree.

32. The case must therefore be sent back to the Court below for the determination of the two questions, namely, (1) the question of whether Amalkanta Sarkar did, in fact, act adversely to the interest of these minor plaintiffs and (2) the vital question of whether the plaintiff are entitled to have it declared that the two decrees in the mortgage suit are bad by reason of the conspiracy or conspiracies alleged. The position is this, that as we think the learned Judge was wrong in his decision on as regards Issue 3 and as he never dealt with the question of whether the interests of Amalkanta Sarkar were adverse to those of the minors, the suit will have to be proceeded with. No doubt, the learned Judge before whom the case comes up for trial, will have due regard to the fact that there was a prior suit and that certain issues were raised in that suit, which therefore should be excluded from the present suit together with any other matters which might have been put in issue in the former suit.

33. It follows that the appeal will be allowed to the extent I have indicated, but, in view of all the circumstances, we think that the costs of the proceedings before Buckland, J. and before this Court should abide the ultimate result of the trial. We express the opinion that it is desirable that the hearing of the suit should be expedited. By consent, the sale which was to have taken place in execution of the decree in the mortgage suit will be stayed until the determination of the suit.

Lort-Williams, J.

34. I agree.


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