1. This is an appeal against an order of the SubordinateJudge of Bankura, dated the 26th of September 1899.

2. The facts of the case are these. A suit for arrears ofrent was brought by one Bishnu Churn Kaviraj, the Manager of the Dhalbhoomencumbered estate, against the defendant, Raja Sir Sourindra Mohun Tagore.During the pendency of the suit the estate in question was released from themanagement of buBishnu Churn Kaviraj and an order was passed by the DeputyCommissioner directing the proprietor of the property to take over charge of it.The question then arose as to who was to carry on the suit against Raja SirSourindra Mohun Tagore. The Ranis of Raja Ram Chunder Deo Dhabal Deb applied tobe made plaintiffs under Section 372; and an order was passed to that effect bythe Subordinate Judge.

3. The defendant, Raja Sourindra Mohun Tagore, now appealsto this Court and contends that the Subordinate Judge was not right indisallowing his objections to the substitution of the Ranis as plaintiffs inthe suit.

4. A preliminary objection has been taken to the hearing ofthis appeal on the ground that there is no appeal from an order passed underSection 372 of the Code of Civil Procedure, and that the provisions of Section588, Clause 21, Code of Civil Procedure, only allow an appeal against an orderdisallowing objections. That may be so. But we think that the order of theSubordinate Judge, disallowing the objection, is practically the same as hisorder substituting the Ranis as plaintiffs; and therefore we do not think thatthe appellant is prevented from appealing to this Court by the somewhatambiguous terms of Clause 21 of Section 588, Code of Civil Procedure.

5. Three pleas have been urged by the learned pleader forthe appellant (i) That the provisions of Section 372, Civil Procedure Code, arenot applicable to the facts of this case; (ii) that there is a Privy Councilorder directing that the Manager of the Dhalbhoom encumbered estate shouldcontinue in the management of the estate; and (iii) that the Raja SourindraMohun Tagore purchased the interests of the three Ranis and therefore the suitcannot proceed at their instance.

6. As to the first of these contentions we would say that wethink that the provisions of Section 372, Civil Procedure Code, are applicableto this case. It is true that there has been no assignment of interest. But itappears to us that there has been a devolution of interest pending the suit.Under the provisions of Section 16 of Act VI of 1876, so long as the propertyremains under the management of the Manager, the proprietors cannot sue orrecover rents. The Manager only can do so; and now that the Manager has beenremoved, it seems to us that there has been a devolution of the right torealize and recover rents from the Manager to the proprietor of the estate.

7. The learned pleader for the respondent argues that words"devolution of interest" in Section 372, Civil Procedure Code, applyto devolution of interest by death, and he cites certain English cases to showthat this is the interpretation put in England upon these words. But the Codeof Civil Procedure does not prevail in England, and we must interpret its termsas best we may without reference to English cases. In our opinion the words"devolution of interest" in Section 372 are not used in a technicalsense, because the latter part of the section speaks of such interest coming toa person "either in addition to or in substitution for the person fromwhom it has passed, as the case may require." From the use of the word"come" in the latter part of the section it would appear that thewords "devolution of interest" in the first part of the section donot mean only devolution by death.

8. Then, with regard to the second contention of the learnedpleader for the appellant, it appears that the Subordinate Judge in hisjudgment says that their Lordships of the Privy Council have by aninterlocutory order passed in the case of Mohesh Chunder Dhal v. Satrughan DhalI.L.R (1899) . 27 [LQ/PC/1899/27] Cal. : C.W.N. ccxcvii: L.R. 26 IndAp 381 directed that theDhalbhoom estate should continue to be under the management of the Manager. Butwe do not think that we are entitled to refer to the Calcutta Weekly Notes forsuch an order, or to take cognizance of such an order as is said to have beenpassed in the report of the Calcutta Weekly Notes. No copy of any such orderhas been filed on the record, and we cannot act upon the order unless it is sofiled. We are entitled to refer to reports of cases as precedents, but if anorder is meant to be operative in a particular case, that order must beproduced and filed in the record of that case.

9. Then, with regard to the appellants third plea, itappears to us that the Subordinate Judge has only made the three Ranisprovisional plaintiffs. For he has, subsequent to the order making the Ranisplaintiffs, framed three issues in the case which are to be found at page 20 ofthe paper-book of appeal from Original Order No. 348 of 1899. These are:"5th, whether Rani Siromoni has sold her rights to the zamindari to thedefendant, and whether she is entitled to any one; 6th, whether the suit canproceed at the instance of the other two Ranis; 7th, whether the RanisPadmabati and Churamoni have relinquished their rights to the zamindari infavour of Rani Siromoni, and whether the latter has sold the same to thedefendant."

10. Now we do not understand that the Subordinate Judge hasby his order meant to exclude the defendant from giving evidence in support ofthese issues, and certainly the order of the Subordinate Judge must not beconsidered as having that effect. These issues must be tried in the course ofthe trial; and should it appear that the interest of the three Ranis has passedto the defendant, their names must be removed from the category of plaintiffs;or if the interest of any one of the Ranis has passed to the defendant, hername must be removed therefrom. In the meanwhile, the order of the SubordinateJudge making the Ranis provisional plaintiffs appears correct.

11. This appeal, therefore, fails and we dismiss it withcosts, which are to be divided equally between the two sets of respondents.

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Sourindra Mohun Tagorevs. Siromoni Debi and Ors.(09.08.1900 - CALHC)

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