Arthur Wilson, J.

1. who after stating the facts, continued as follows: In theCourt below it was contended on behalf of the plaintiff Bank that there is nopower under any circumstances to add a party defendant on his own application.This content was not pressed before us, and we entertain no doubt that the viewliken by the learned Judge on this point is correct.

2. And, the Court having this power, the present case is onein Which it is especially desirable to exercise it. The fund is in Court, andby the act of the Court in its order of the 8th February 1882. There is somereason to suspect that at the time then the order of the 8th February 1882 wasobtained those who were in charm of the plaintiff Bank knew that bills oflading had been, or were likely to have been, issued in respect of the rice. Ifso, the suppression of the fact was a very grave matter indeed, and theplaintiff Bank which is trying to get the money out of Court is in liquidation.

3. But it was contended before us that the Limitation Actprecludes the making of this order at the present stage. This point was nottaken before the learned Judge of the Court below, but it was strenuouslypressed upon us. It was said that the application of the Banque de la Reunionto be made a party was an application within the meaning of the Limitation Act,and an application not expressly provided for in the Act; and that thereforeunder Article 178 of the second schedule it must be made within three years ofthe time when the right to make the application accrued.

4. It was said further that the right to make thisapplication accrued when the Banque de la Reunion acquired title by endorsementof the bills of lading: or, at latest, when by the dismissal of its own suitthe true state of the case became known to it. But assuming that the articlereferred to applies to such a case, still we think this application was notbarred. We think that the right of an outsider to claim to be made a party to asuit accrues when the necessity for his so claiming arises. In the present casewe think that, however it may have been before, a right to make thisapplication accrued to the Banque de la Reunion in October last, when theperson who had up to that time represented its interest and defended for itsbenefit ceased to have any voice in the suit, and the other parties proceededto dispose by arrangement of the funds in Court behind its back.

5. Speaking for myself, I must say further, that in myopinion there can arise no question of limitation with respect to the Courtspower to make such an order as that in question. There are two classes ofprovisions in the Procedure Code with regard to parties. One class ofprovisions confers rights upon plaintiffs and others, chiefly as to theoriginal selection of parties--by chap. III, as to the addition or substitutionof parties by reason of subsequent events in chap. XXI. For applications to bemade to the Court in exercise of such rights, periods of limitation arefrequently provided. In most of such cases if the rights given are notexercised within the time limited the ordinary consequence is that the suitcomes to an untimely end. Thus, if a sole plaintiff or defendant die, and therepresentatives are not brought in within the time limited, the suit fails, andthe Court has nothing more to do with it unless it can be and is revived. Thesecond class of provisions does not give rights to parties, but confers powersand imposes duties upon the Court. The object of these provisions is not somuch to prevent the abatement of suits, as to secure that if a suit doesproceed and is adjudicated upon, that shall only be done in the presence of theproper parties, lest the Court should be made an instrument of injustice orfraud by determining rights, and even, as here, handing over property, withouthearing the persons interested. The difference between these two classes ofprovisions is well illustrated by Sections 363 and 364. By Section 363 if oneof several plaintiffs dies, and the cause of action survives to hisrepresentatives, together with the surviving plaintiffs, the representativesmay come in and get themselves joined as plaintiffs; and a time is limited fortheir doing so.

6. If they do not apply within that time their right isgone. It may be that in such an event the suit will not proceed, in which casethe Court has nothing to do with the matter. But by Section 364 the suit mayproceed at the instance of the surviving plaintiffs; and if it does, the Courthas power to do, and is bound to do the thing which the representatives havelost the right to claim; "the legal representative of the deceasedplaintiff shall be made a party." The second paragraph of Section 32belongs to this class of provisions. It says: "The Court may at any time,either upon or without such application (that is the application of eitherparty), and on such terms as the Court thinks just, order that any plaintiff bemade a defendant, or that any defendant be made a plaintiff, and that the nameof any person who ought to have been joined, whether as plaintiff or defendant,or whose presence before the Court may be necessary in order to enable the Courteffectually and completely to adjudicate upon and settle all the questionsinvolved in the suit be added."

7. For the exercise of these powers and those conferred byother sections upon Courts no period of limitation is provided; and they are tobe exercised in my opinion whenever the necessity for doing so is madeapparent, so long as the case is sub judice. Any other view would, I think,lead to disastrous consequences. It was suggested in the present case that,though the Court might act at any time of its own motion, it could not act onthe application of any person if the right of that person to claim relief werebarred. I do not think that is so. I do not see how the fact of any personsmaking an application, whether in time or out of time, can take away from theCourt a power given to it to act at any time, either upon or withoutapplication.

8. Lastly, it was argued, that the Banque de la Reunion hadbeen guilty of such laches that its petition ought to be rejected. But we seeno laches. The practical necessity for its intervention arose when it becameaware of the agreement of last October.

9. The appeal is dismissed with costs.

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The Oriental Bank Corporation vs. J.A. Charriol and Ors. (19.03.1886 - CALHC)