1. We are invited in this Rule to set aside an order bywhich the Court below has refused to review its decision in a suit for rent.The lease, on the basis whereof rent was claimed by the plaintiff, appears tohave been granted on the 30th November 1897 by Rameshur Koer to Radha Koer. Onthe 16th June 1908 the present suit was commenced by Rameshur Koer as executrixto the estate of Ratan Koer and as guardian of Bhubaneshuri Koer who isbeneficially interested in the Tikary Raj Estate, for recovery of rent againstRadha Koer, the original lessee, and three other persons, the assignees of thelease-hold interest. It transpired after the institution of the suit that RadhaKoer had died so far back as 1901. Consequently, upon application by theplaintiff, five persons were brought on the record as representatives ininterest of Radha Koer. It may be conceded that from the point of view ofstrict procedure, the suit as against Radha Koer was incompetent, because atthe time of its commencement she was dead. No objection, however, was taken tothe so-called application for substitution, but it cannot be disputed that ifany question of limitation arose, as against the substituted defendants thesuit would have to be treated as instituted on the day on which the applicationfor substitution was made, that is, the 27th August 1908. Of the eight personsthus joined as defendants, the three assignees resisted the claim on the groundthat the assignment in their favour was inoperative. Three of the five personssubstituted in place of Radha Koer contended that they were not liable, becausethey were not the legal representatives of Radha Koer. The other two persons,brought on the record as her representatives in interest, did not enterappearance. The result was that two issues were raised, namely, first, whetherthe three contesting substituted defendants were liable as representatives ofRadha Koer, and secondly, whether the relationship of landlord and tenantexisted between the plaintiff and the assignee defendants. The Court answeredboth these questions against the plaintiff. The suit was, therefore, dismissedas against the three contesting substituted defendants on the ground that theyhad not been proved to be the representatives in interest of the originallessee; it failed also as against the assignees on the ground that the allegedassignment was inoperative inasmuch as the lease contained a covenant against alienation.The net result was an ex parte decree, made on the 5th March 1909 in favour ofthe plaintiff, against two only of the persons brought on the record asrepresentatives in interest of the original lessee. On the 6th April 1909, theplaintiff Rameshur Koer applied to the Court to review this judgment.Meanwhile, on the 12th November 1908, the present petitioner Bansi Singh hadbeen appointed Receiver of the Tikary Raj Estate in the course of anadministration suit. He was not able, however, to obtain delivery of possessionof the estate till the 28th January 1909, and on the 22nd July 1909, he appliedthat he might be substituted in place of the plaintiff in the application forreview. This was refused on the 31st July 1909, on the ground that as the Receiverhad been appointed before the application for review was made by the originalplaintiff on the record, he could not be substituted in her place. Theapplication for review next came to be heard on the 28th August 1909, and wasdismissed on the ground that as a Receiver had been appointed, it was no longercompetent to the plaintiff to prosecute the application. The result was thatthe application of the Receiver to prosecute the application for review failed,because it had been made too late, and the application of the plaintiff failedbecause her interest had vested in the Receiver. It is plain that the causepursued by the Subordinate Judge could not and did not conduce to theadministration of justice. On the 23rd September 1909, the Receiver himselfmade an application for review; of judgment. He was called upon to pay fullCourt-fees and his application was treated and accepted as valid upon paymentof such sum on the 9th January 1910. The application was then heard anddismissed on the 28th May 1910 by an order the propriety of which we are nowinvited to consider.

2. The application for review was made by the Receiver onthe ground that, since the decision of the suit, an ekrarnamah, executed so farback as the 18th July 1901, had been discovered which showed conclusively thatall the five persons brought on the record as representatives in interest ofthe original lessee were interested in the lease hold property. The parties,though called upon to produce the document, failed to comply with the older ofthe Court; consequently, a certified copy was placed upon the record. TheSubordinate Judge does not appear to have been, wholly satisfied that thisevidence might not have been produced at the original trial, and in this view,he has refused the application for review. Apart from the question of thecorrectness of this view, it has transpired in the course of the argumentsaddressed to us, that the Receiver had been appointed on the 12th November1908, that is, long before the rent suit was decreed in favour of the plaintiffon the 5th March 1909. That decree, it cannot be disputed, is infructuous. Byoperation of law, the estate, inclusive of the cause of action in the rentsuit, had vested in the Receiver and thereafter the Receiver was the onlyperson competent to prosecute the suit and to obtain a decree against thedefendants [Jagat Tarini v. Naba Gopal 34 C. 305 : 5 C.L.J. 270; Jatindra Nathv. Sarfuraj Meah : 14 C.W.N. 653 : 6 Ind. Cas. 214] [LQ/CalHC/1910/166] . This byitself is a sufficient ground, why the review should be granted and the decreedischarged. It has been strenuously argued, however, that this ground was notsuggested in the application for review and that, consequently, this Court isrestricted to one ground and one ground alone, namely, the discovery ofadditional evidence not available to the parties at the original trial. We areof opinion that this position cannot possibly be maintained. In the firstplace, it is the plain duty of every Court to re-call an order when it isapprised that the order has been made under an erroneously assumed state ofcircumstances essentially different from the true state of things [Tuffazal v.Raghonath 14 M.I.A. 40 at p. 51 : 7 B.L.R. 186; Radhey v. Mangni: 6 C.W.N. 710; Udit v. Rashika 6 C.L.J. 662 : 3 M.L.T. 41].In the second place, as pointed by their Lordships of the Judicial Committee inBhagwandeen Dcobey v. Myna Baee 11 M.I.A. 487 at p. 490 : 9 W.R. 23, a Court,when it deals with an application for review of judgment, is not restricted tothe grounds mentioned in the application; the Court has wider powers and it iscompetent to the Judge dealing with an application for review, to enlarge thosegrounds on oral application, if he is satisfied that there was a proper case onthe merits for so doing and granting the review. In the case before us, if theapplication for review is not granted, the gravest complications would result.As soon as an application for execution of the decree is made, an objectionmay, for instance, be taken that the decree was made in favour of a person,who, at the time it was made, had no subsisting interest, and that consequentlythe Court, under such circumstance, will not allow the decree to stand.

3. We are clearly of opinion, however, that the review oughtto be granted on the very ground on which the Application was made. It wasargued in the Court below, and the contention has been repeated in this Court,that under the ekrarnamah executed on the 14th July 1901, all the five persons broughton the record as representatives in interest of the original lessee were liablefor the claim of the plaintiff. That ekrarnamah was executed between partieswho formed members of a family to which the deceased belonged. Prima facie theexecution of such an instrument would not in ordinary course come to theknowledge of the landlord. There is no suggestion that the lady who acted asguardian of the infant beneficially interested in the estate, had at any timeknowledge of this document. There is no suggestion also that the Receiver whowas entitled to prosecute the rent suit after his appointment was in any wayapprised of the instrument. Consequently, upon the discovery of such adocument, the Court ought to afford an opportunity to the plaintiff or herrepresentatives to enforce her claim.

4. It has been suggested, finally, that the ekrarnamah is ofno assistance to the plaintiff, because it deals with the properties of thehusband of the lessee Radha Koer and does not in any way touch the lease-holdproperty. But it is not necessary for us to decide this matter at the presentsinge. In fact, this would be a proper question for examination after theapplication for review of judgment has been granted. We may point out, however,that it has been argued on behalf of the petitioner that the ekrarnamah makesthe defendants liable, because it deals with the mortgage security which wasaccepted by the original lessee from the assignees to secure payment of theunpaid balance of the consideration money; in other words, if the mortgageinterest, divided by these five persons under the ekrarnamah, was taken in lieuof, or in substitution for, the lease-hold interest assigned, it is conceivablethat the present opposite party may find themselves bound to satisfy the claimof the plaintiffs. That, however, as we have already stated, is not a matter wecan decide finally at this stage of the proceedings. It is sufficient to holdthat there is no room for serious controversy that the original decree oughtnot to be allowed to stand.

5. The question next arises, whether if the suit isre-heard, it ought to be re-heard only as against the five persons brought onthe record as representatives in interest of the original lessee or also asagainst the assignees. No doubt, as pointed by this Court in the case ofThacoor Prasad v. Baluck Ram 12 C.L.R. 64 and Hurbans Sohye v. Thakoor Purshad: 9 C. 209 : 13 C.L.R. 285, an application for review ofjudgment may be granted in part. But it must obviously depend upon thecircumstances of each case, whether the whole suit should be reopened onwhether it should be retried only in part. It has been strenuously contendedhere on behalf of the assignees that as the claim has been dismissed againstthem on the ground that the assignment never took effect and as the discoveryof new evidence cannot possibly make them liable, the suit ought not to bere-opened so far as they are concerned. We are unable to accede to thiscontention for two reasons. In the first place, if the decree is set aside onthe ground that it was made in favour of a person who at the time had nosubsisting title, the entire decree must be set aside. In the second place, theopposite parties brought on the record as representatives in interest of theoriginal lessee may very well contend that as the suit was dismissed againstthree of them on the ground that they could not be held liable in any view ofthe case, they did not at that stage think it necessary to enter into anelaborate examination of the truth or otherwise of the allegations made by theassignees that the assignment had never taken effect. We are, therefore, ofopinion that the application for review ought to be granted and the entiredecree set aside.

6. The result is that this Rule is made absolute and theorder of the Court below set aside; we pass the order which ought to have beenmade by the Court below, namely, grant the application and discharge theoriginal decree as against all the defendants. The record will be sent down sothat the suit may be restored to its original number and re-tried in thepresence of all the parties: The ekrarnamah will be received in evidence andwill be considered in the decision of the questions raised at the re-trial. Ifit transpires that the Receiver has been discharged the suit will be re-triedat the instance of the person now representing the estate. Each party will payhis own costs of these proceedings.

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Bhubaneshwari Koervs. Ajodhya Singh (23.03.1911 -CALHC)