Skip to content


Sundarji Shibji Vs. Mangtulal Bagaria - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal547
AppellantSundarji Shibji
RespondentMangtulal Bagaria
Cases ReferredEvans v. Bagshawe
Excerpt:
- .....appellant has referred to the case of evans v. bagshawe (1870) 5 ch 340. that case is obviously distinguishable, for here the effect of the decision of ameer ali, j., is that there was no decision vesting the estate in the official assignee at the date of the institution of the suit so as to prevent the plaintiff from maintaining the present suit. ameer ali, j., said distinctly that the effect of his decision was as if the prior decision vesting the estate in the official assignee had not existed at all. ameer ali, j., was merely emphasizing what the law implied. in this view, i think, the appeal ought to be dismissed and i have the satisfaction that this decision of ours does not affect the rights of any innocent third party.
Judgment:

C.C. Ghose, Ag. C.J.

1. The present appeal arises out of a suit to recover a sum of Rs. 21,216-10-0 said to be due for minimum royalties, in terms of a lease, dated 7th November 1919, and for an enquiry as to What further sum is payable on account of royalties. The plaintiff is one Mangtulal Bagaria. He succeeded in the Court below and hence the present appeal by Sundarji Shibji, who is one of the defendants. Only one point has been argued before us, namely, that Mangtulal Bagaria was incompetent to bring this suit for the reasons which are set out in the judgment of the Court of appeal in the case of Hiralal Murarka v. Mangtulal Bagaria : AIR1933Cal208 . It is not necessary for me to set out at length the reasons which led the Court of appeal to hold in the last-mentioned case that the plaintiff Mangtulal Bagaria was not entitled to bring a suit of the description as in the present case. The facts in that other case and the facts in this case are all alike so far as the point raised before us is concerned and they are all set out in the judgment of the learned Chief Justice and there is no question that if nothing else had happened since the date of the judgment of the learned Chief Justice the present appeal would have been governed entirely by that judgment. But what has happened is that as soon as the judgment of the Court of appeal was delivered, an application was made to Ameer Ali, J., as a Judge of this Court exercising insolvency jurisdiction, for vacating the order of 4th August 1924. That application was successful, the date of the order of Ameer Ali, J., being 6th July 1932. The order of 4th August 1924, having been vacated, as if it never existed, it cannot now be disputed that Mangtulal Bagaria was and is competent to maintain the suit out of which the present appeal has arisen. This is the view taken by Pankridge, J., in Mangtulal Bagaria v. Gordhandas Manisankar Bhatt Original Suit No. 1691 of 1929 decided on 4th August 1932, and I agree with the same. The result therefore is that the sole point taken by the appellant in this appeal fails and the appeal must be dismissed with costs.

Mitter, J.

2. I agree with the learned Acting Chief Justice that this appeal should be dismissed. It appears that at the date of the institution of the suit, for recovery of a sum of Rs. 24,216-10-0 due for minimum royalties, the estate had vested in the Official Assignee under an order of this Court which is dated 4th August and a defence was taken in the suit that the suit was not maintainable at the instance of Mangtulal Bagaria, the respondent in this appeal, as he had no title to the estate-the estate having vested in the Official Assignee. This defence did not prevail with Buckland, J., who heard the suit. After the appeal was filed, circumstances have intervened which go to show that the order of 4th August 1924 is no longer in existence. Ameer Ali, J., has vacated that order. It is contended on behalf of the appellant that the order of Ameer Ali, J., cannot have the effect of giving title to the plaintiff to sue at the date when admittedly the order was in existence. A curious question consequently arises in this case, namely that if a decision is either reversed or set aside, what is the position of persons who have acted in accordance with the original decision? The question arises: Was the previous decision good law till it was vacated or was it a mere mistake upon which persons acted at their peril? It is to be observed however that in the present case the rights of third parties have not intervened. I am of opinion that a subsequent decision is a legal adjudication that the prior one was not law at the time it was made. There is some authority to be found for this view in some of the decisions of the American Courts: See the case of Woodruff v. Woodruff 52 NY Ct App 53, a case which I find cited in Sir Thomas Holland's classic book on the Elements of Jurisprudence.

3. It remains to notice an argument which has been advanced by learned Counsel for the appellant that where a plaintiff has no title at all he cannot carry on the suit by subsequently acquiring a new title and amending the bill accordingly. In support of this position learned Counsel for the appellant has referred to the case of Evans v. Bagshawe (1870) 5 Ch 340. That case is obviously distinguishable, for here the effect of the decision of Ameer Ali, J., is that there was no decision vesting the estate in the Official Assignee at the date of the institution of the suit so as to prevent the plaintiff from maintaining the present suit. Ameer Ali, J., said distinctly that the effect of his decision was as if the prior decision vesting the estate in the Official Assignee had not existed at all. Ameer Ali, J., was merely emphasizing what the law implied. In this view, I think, the appeal ought to be dismissed and I have the satisfaction that this decision of ours does not affect the rights of any innocent third party.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //