Authored By : O Kinealy, T. Ameer Ali

O Kinealy and T. Ameer Ali, JJ.

1. This appeal arises out of an application for theexecution of a decree passed by the Subordinate Judge of the 24-Pergunnahs onthe 18th August 1890.

2. Haro Prosad Roy Chowdhry obtained a decree against theappellant and others. He died, and his mother, claiming under a will, took outprobate and got her name registered under Section 232 of the Civil ProcedureCode as the Representative of Haro Prosad. Subsequently, the will was setaside, and the estate then passed to Baroda Prosad Roy Chowdhry, the son ofHaro Prosad, and who is now a minor under the Court of Wards. The minor,through the manager under the Court of Wards, applied to have his name enteredin the execution proceedings, and to have the proceedings revived in the Courtof the First Subordinate Judge of Alipur. That application was allowed, but onappeal to this Court it was rejected on the ground that the application shouldhave been made to the Court which passed the decree, and not to the Court towhich the decree had been sent for execution. After that, an application wasmade to the Court of the Second Subordinate Judge of Alipur by the Collector ofthe 24-Pergunnahs on behalf of the minor on the 18th June 1890, to have hisname registered and execution to issue. Notice was served on thejudgment-debtor, and the judgment-debtor, who is the appellant before us,appeared and raised several objections. The chief among them were that theapplication was barred by lapse of time; and, not having been made by themanager of the wards estate, but by the Collector of the district, who had nopower to make any application on behalf of the minor as long as the managerexisted, it should be dismissed. These answers were not considered sufficientby the Subordinate Judge, and he allowed execution to issue.

3. The judgment-debtor, dissatisfied with this order, hasappealed to this Court, and has raised the same defence before us as was raisedby him in the Court below.

4. We think that so far as the question of limitation isconcerned, the appellant ought not to succeed. Admittedly, if the decree-holderis entitled to the benefit of Section 14 of the Limitation Act, and allowanceis made for the time during which he prosecuted the former application, thepresent application is not barred. We agree with the Subordinate Judge in consideringthat he is entitled to the deduction claimed. The application was dismissed inthis Court on the ground that it was made to a Court which had no jurisdictionto receive it. We do not acquiesce in the argument of the learned Counsel forthe appellant that the litigation in that case could not have been carried onin good faith. Looking at the judgment of the first Court, and thecircumstances surrounding that litigation, we think it could, and we concurwith the Subordinate Judge in allowing the respondent the benefit of thatdeduction.

5. But in regard to the question whether the Collector wasjustified in making the application, we regret that we differ from theSubordinate Judge. Under Bengal Act IX of 1879 the Board of Revenue is theCourt of Wards. By Section 20 it can appoint one or two managers of theproperty of a ward, who is quite a different officer from the guardian of theperson of a ward. Sections 39 and 40 enumerate the duties and powers ofmanagers; and so far as general management is concerned, when no manager hasbeen appointed the Collector of the district in which the greater part of theproperty is situated can manage the property. By Section 51, in every suitbrought by or against any ward, he must be described as a ward of Court; andthe manager of such wards property, or, if there is no manager, the Collectorof the district in which the greater part of such property is situated, or anyother Collector whom the Court of Wards may appoint in that behalf, shall benamed as next friend or guardian for the suit, and shall in such suit representsuch ward. This is the general mode of describing the persons who can appearfor a ward.

6. Under Section 52 power is given to the Court of Wards byan order to nominate or substitute any other person to be next friend orguardian for any such suit; and if the order be one for substitution, the CivilCourt, on the presentation to it of a copy of such order, is bound to carry outthe order of the Court of Wards.

7. Section 55 declares that "no suit shall be broughton behalf of any ward, unless the same be authorized by some order of theCourt".

8. Looking at all these sections, it seems to us that theLegislature has declared that only a manager, or a Collector, or some specialperson appointed by the Court of Wards, can file original suits on behalf of award, and represent, the ward throughout the whole of the litigation.

9. It has been argued before us by the Counsel for therespondent that the word "suit" in that Part, i.e., Part VII of BengalAct IX of 1879, must mean what is usually called a "regular suit",and cannot refer to proceedings of the nature now before us, in which the wardseeks to have his name substituted for that of his mother, and the decreeobtained by his father executed. We regret that we are unable to accept thisargument. The word "suit" in this Act has not the narrow significanceattached to the word "action" in English Law; and as Sir BARNESPEACOCK pointed out in a Full Bench decision of this Court it embraces all contentiousproceedings of an ordinary civil kind, whether they arise in a suit ormiscellaneous proceedings. That too, was the opinion of a Division Bench ofthis Court in the case of Shurut Soonduree Debia v. The Collector of Mymensingh7 W.R. 221 where it was decided that the Court of Wards has full control overmiscellaneous proceedings in execution of decree. Nor can we find anything inthe nature of the Act itself which militates against this conclusion. It is anAct passed placing the property of wards and wards litigation exclusively inthe power of the Court of Wards (and there are reasons which make it desirablefor the Court of Wards, and the Court of Wards alone, to have the initiation oflitigation under its control), and applies as much to miscellaneous proceedingsinitiated on behalf of a ward as to regular suits. We think therefore that theword "suit" in this Act covers an application of the nature nowbefore us in which the ward for the first time socks to have the carriage ofthe litigation.

10. The next point argued is that the application has notbeen made by the manager and that as this informality was objected to at thebeginning of the suit, the application should have been dismissed, The managerunder the Court of Wards is appointed by the Court of Wards under powers givento it by statute. The Court, no doubt, has complete control over such matters,but its duty is sot forth in the Act, and its position seems to be that of apublic officer appointed under statute. In this case a manager was appointed;but it is said that previous to the application being presented he had takenleave, and that the Collector of the 24-Pergunnahs was the proper person tomake the application. We think that the office of manager did not become vacantbecause the manager obtained leave; and if it is not vacant, Section 51 of theWards Act does not enable the Collector to appear on behalf of a minor. TheCourt of the Subordinate Judge of the 24-Pergunnahs had jurisdiction over thesubject-matter of the litigation, and although the application may not havebeen properly initiated, still it might well be that if a proper applicationhad been made after the death of the manager, who, we are told, died before theSubordinate Judge gave judgment in this case, much of the existing difficultyin the case would not have been experienced. When the manager died, whathappened when he died, we are unable to say. Indeed, in this and in many otherpoints we have been unable to obtain any information from the papers. Moreover,it may well be, for aught we know, that the Collector was appointed by virtueof the Rules issued by the Board of Revenue to Commissioners of Hurro ChunderRoy Chowdhry v. Sooradhonee Debia B.L.R. Sup. 988 (990) sub-divisions underSection 52 of the Act as a special person to carry on this litigation. But intruth, no evidence was taken in the Court below, and there is nothing before uson which we would be justified in coming to any determination.

11. We, therefore, direct that the records be returned tothe Subordinate Judge of the 24-Pergunnahs in order that he may hear evidenceand determine: first, when the manager took leave: secondly, on his takingleave, what, if any, arrangements were made for the management of the propertyand for the carrying on of litigation; thirdly, if any such arrangement wasmade, was it made under the order of the Court of Wards, and if not, by whom;fourthly, when did the manager die; and fifthly, after his death whatarrangements were made for the management of the property and the carrying onof the litigation of the ward, and by whom.

12. The Judge will submit to this Court his finding on theissues above indicated, together with the evidence recorded on those issues,within a month from the date of the receipt by him of the record, and will, atthe same time, return the record.

13. The case will remain on the file of this Court.

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Baroda Prosad Roy Chowdhryvs. Bhoopendro Narain Dutt and Ors.(15.05.1891 - CALHC)