R.C. Mitter, J.
1. The petitioner, who was the common manager of the Kalna estate executed a promissory note in favour of the opposite party while he was the common manager. Since then he has passed his accounts and has been discharged by the District Judge, who appointed him. The promissory note which is dated September 18, 1931, is in these terms:
I promise to pay on demand Babu Atul Krishna Bose or order the sum of Rs. 200 (two hundred) only with interest at the rate of 1-8 (Rupee one and annas eight) per cent. per mensem for value received in cash.
2. He then signs the promissory note in the following manner:
Brindaban Chandra Mitter Common Manager of Kalna.
3. The suit out of which this Rule arises was instituted against him and a decree against him obliging him to pay personally has been passed by the lower Court. He raised the defence that he was not, liable, but the proprietors of the estate of which he was the common Manager were, as far their benefit the money was borrowed and applied by him. The said defence has been overruled. In this Rule Mr. Sarkar has raised the same point on his behalf.
4. Two points emerge for consideration, namely (i) Is a common manager appointed by the District Judge, under the provisions of Section 95 of the Bengal Tenancy Act, an agent of the proprietors and (ii), if so, did the defendant in this case execute the promissory note indicating that he was executing it as agent of the said proprietors, for if he did not, he would be personally liable on it under the provisions of Section 28 of the Negotiable Instruments Act.
5. Assuming that a common manager appointed under the provisions of the Bengal Tenancy Act is an agent of the proprietors (which in my judgment he is not), I am clearly of opinion that the promissory note executed by the defendant in this case does not indicate that he executed it as agent of the proprietors. In the body of the note he does not say that he was executing it as common manager and on behalf of the proprietors, and the addition of the words ''common manager of Kalna', after his signature, in my judgment, are only words of description of the position of the defendant. In this view I am supported by the cases of Sadusuk Jankidas v. Kishan Prasad 46 IA 33 : 50 Ind. Cas. 216 : AIR 1918 PC 146 : 46 C 663 : 29 CLJ 340 : 17 ALJ 405 : 25 MLT 258 : 36 MLJ 429 : 21 Bom.LR 605 : 1 UPLR (PC) 37 : (1919) MWN 310 : 33 CWN 937 : 10 LW 143 : 12 Bur.LT 160 (PC), Sreelal Mangtulal v. Lister Antiseptic Dressing Co., Ltd. : AIR1925Cal1062 , Elliot v. Bax-Ironside (1925) 2 KB 301 : 94 LJKB 807 : 133 LT 624 : 41 TLR 631 and Dhirendra Nath Mukherjee v. Nutbehary Munshi : AIR1933Cal660 . The case of Universal Steam Navigation Co, Ltd. v. James McKelvie & Co. (1923) AC 492 : 92 LJKB 647 : 129 LT 395 : 39 TLR 480 : 67 SJ 593 : 16 Asp. MC 181 : 28 Com. Cas. 353, doss not militate against the view I am taking, for in that case James McKelvie signed the Charterparty as agent and on behalf of the company. I accordingly hold that the defendant is under a personal liability to the plaintiff. This is sufficient for disposing of this Rule and here I have assumed that a common manager appointed under Section 95 of the Bengal Tenancy Act is an agent of the proprietors, but as the question as to whether he is their agent or not has been argued before me in great detail. I express my views upon the point.
6. In my judgment such a common manager is not an agent of the proprietors of the estate placed in his charge. The relationship of principal and agent is a contractual one. There must be, appointment by the principal and the acceptance of the appointment by the agent. The powers of the agent and the scope of his authority are mostly defined by agreement between him and his principal. The position of a common manager is so essentially different that he cannot by any stretch of language be called an agent of the proprietors. He is appointed by the District Judge in all cases, save one, he acts under the District Judge's control and supervision, he exercises all the powers of the co-owners in the matter of management and while he is there none of the co-owners can exercise any such powers; he is to render accounts to the District Judge and not to the proprietors, who have the mere right to inspect the accounts but they cannot demand accounts from him or sue him for accounts without leave of the District Judge appointing him, he has got his accounts passed by the District Judge, no suit for accounts at the instance of the proprietors would lie against him; he is to distribute the funds only according to the directions of the District Judge and can be removed by him and him alone. All these show that he is not an agent of the proprietors, but is an officer of the Court, and is moreover, a Public Officer within the meaning of the Civil Procedure. His position is akin to that of a Receiver appointed by a Court. He can be sued only with the leave of the Court appointing him and after notice under Section 80 of the Civil Procedure Code in respect of acts done by him in his capacity as common manager. In the case of Nabakishore Mondal v. Atul Chandra Chatterjee 40 C 150 : 16 Ind. Cas. 193 : 17 CWN 846 a co-owner brought a suit for general account against the common manager. Such a suit would undoubtedly have been maintainable against him if he was a mere agent of the proprietors. But it was held that it was not maintainable. In so holding Brett and Chapman, JJ. made the following observations at page 160 Page of 40 C.--[Ed.] of the report.
During the time that an estate is. under the management of a. common manager, it is so far as hat management is concerned, really in the hands of the Court which has appointed the manager and in the management, the common manager acts as agent of the Court, and not as agent of any of the co-owners.
7. On principle and on the authorities of this Court, (I may also mention the case of Beni Madhav Sukul v. Deb Narayan Sukul 24 CWN 138 : 53 Ind. Cas. 747 : 30 CLJ 279, I hold that a common manager is not the agent of any of the co-owners of the estate committed to his management and so the very foundation on which Mr. Sarkar based his arguments has no existence at all. For these reasons I hold that the decree passed against the defendants is a, correct decree and should be upheld. The defendant may or may not have his indemnity against ' the estate he managed as common manager, but to such a question the plaintiff is not; at, all interested and such questions about his right of indemnity are foreign to the case before me. 1 may make these observations because the Small Cause Court Judge has in one part of his judgment observed that the defendant borrowed in excess of his powers, for he did not obtain sanction of the District Judge for the loan. Whether sanction of the District Judge was necessary for the loan in question and whether the defendant had acted in excess of his powers or in a manner which would prejudice his right of indemnity are, as I. have already said foreign to the enquiry that has to be made in this suit and the Court below ought not to have made any observations touching and concerning them. These observations must, therefore, be taken to be expunged from its judgment.
8. The result is that I uphold the decree made by the lower Court on the grounds mentioned by me and discharge the Rule with costs. Hearing fee one gold mohur.