The Judgment of the Court was as follows:—
This Rule was issued at the instance of Prince Victor Narayan, Defendant No. 9, in a suit pending in the Court of the Subordinate Judge of 24-Parganas, who has now been declared a bankrupt under the English Bankruptcy Act. The rule is in these terms: “Why the order striking out the names of Defendant No. 9 mentioned in the petition should not be set aside and why the trustee in Bankruptcy should not be brought on the record in place of Defendant No. 9 referred to in the petition.” With regard to the second portion of this rule, it may be mentioned that there is no application before us either on behalf of the bankrupt or on behalf of the trustee in bankruptcy that such trustee should be substituted in place of Defendant No. 9 in the suit.
The main question that has been argued before us is as to the propriety of the order of the learned Judge striking off the Petitioner's name from the suit. A short history of this litigation may be useful in considering the nature of the objection. The suit was brought by Plaintiff No. 1 and one Uday Narayan as Plaintiff No. 2 for declaration of their title to the Bijni Raj and for other reliefs, The cases of the Plaintiffs were not founded on the same right, Plaintiff No. 1 claiming to be the next heir to the late Raja under the ordinary rule of primogeniture and the second Plaintiff claiming the same right under the rule of lineal primogeniture. The prayer in the plaint was that a decree might be passed in favour of either of the Plairaiffs. Subsequently the Plaintiffs fell out and there was an application by both the Plaintiffs that one of them ought to go out of the suit. Before that application was heard, Uday Narayan had sold his interest in the estate to Defendant No. 9, the Petitioner before as. The question as to who should have the conduct of the suit was considered by the learned Subordinate Judge and he ordered that Plaintiff No. 1 should remain on the record as Plaintiff and have the carriage of the suit and that Plaintiff No. 2 should be translated to the category of Defendants. The Plaintiff No. 2 died and in his place were substituted his son and Defendant No. 9. Subsequent to that, the Plaintiff applied that the only point that remained to be tried in the suit was the claim of Plaintiff No. 1 as against the Defendants—the principal Defendant being Defendant No. 1 who is now in possession of the Raj; and that being the point for consideration in the suit, the issue which was framed with regard to the alternative right of the two Plaintiffs originally on the record should be expunged. That issue which was issue No. 17 was in these words: “Is the Plaintiff No. 2 the eldest representative of the elder branch of the Bijni Raj family as alleged? Did he ever become and is he entitled to possession?” The Court ordered the issue to be expunged. So at present there is no dispute between the Plaintiff on the record on the one side and the Defendants on the other except with reference to the right claimed by the Plaintiff based upon the ordinary rule of primogeniture. Defendant No. 9 was however kept on the record—the reason for that being that when the Plaintiff No. 2 was transposed to the category of the Defendant the Court had ordered that if the Plaintiff No. 1 failed to furnish security he would lose the privilege given to him and in that case the Defendant No. 9 should be allowed to continue as the sole Plaintiff. The security as ordered by the Subordinate Judge and as subsequently settled by this Court was furnished.
In April 1928, the Petitioner was adjudged bankrupt in England. Thereafter the Plaintiff made an application to strike off his name from the list of Defendants. The learned Subordinate Judge has held that Defendant No. 9 being a bankrupt cannot continue as a party to the suit and has thereupon ordered that the name of Defendant No. 9 be removed from the record. Against this order the present rule has been obtained.
The question, therefore, that falls for consideration is whether because of the bankruptcy of the Petitioner he should no longer be retained as a Defendant in the suit or whether the order of the Subordinate Judge in the circumstances of this case striking his name off is not correct. There can be no dispute that under the English Law a person being adjudged a bankrupt, all his properties, personal and real, vest in the trustee under sec. 53 of the Bankruptcy Act, 1914. The real properties which vest in the trustee in bankruptcy may be properties situated in England or elsewhere, sec. 167. The law on this point has been widened by the Act of 1914, for previous to it property which vested in the trustee was property within the dominions of His Majesty and, before that it was property which situated in Great Britain. Unless there is anything repugnant in the lex loci where the property is situate, the property wherever it may exist, is assigned to the trustee in bankruptcy by virtue of the order of adjudication. See William's Bankruptcy Practice, 13th Edition, (p. 264) and Dicey's Conflict of Laws, 4th Edition (p. 368). That being so, the property in dispute to which Defendant No. 9 claims to have acquired some right under his purchase from Uday Narayan, now vests in the trustee in Bankruptcy. The Petitioner, therefore, has no right left in the property and therefore he is not a proper party to the suit relating to that property. But it has been argued by the learned Advocate appearing for him that the Plaintiff should bring the trustee in Bankruptcy on the record; and reference is made to Or. 22, r. 10, Code of Civil Procedure. That rule enables the Plaintiff to apply in the case of devolution of interest during the pendency of the suit either by assignment or otherwise, including insolvency, to bring on the record in place of the Defendant insolvent his trustee in insolvency. But it casts no duty upon him if he thinks that the suit can go on without the insolvent Defendant. In fact the section makes it discretionary with the Court to allow such an application in the circumstances of a particular case, Lakshman Chunder Dey v. Nikunja Moni Dasi (1). And that discretion has been exercised by the Court below by striking off the Petitioner's name from the list of Defendants. We cannot say in revision that the order passed by the Court below in the circumstances of this case is so erroneous as to entitle us to interfere with it. There are several practical difficulties in the way. If the insolvent Defendant is allowed to remain on the record and fight the suit and if the suit is decreed, the Plaintiffs will be deprived of his costs against the insolvent and the decree which he may obtain will not be binding on the Receiver or Trustee of the insolvent [Kala Chand Banerjee v. Jagannath Marwari (2)] unless the law casts a duty upon the Plaintiff to bring the Receiver or Trustee on the record it cannot be said that the insolvent must be represented in the suit. He has certainly no right to remain on the record as a Defendant and he cannot insist that he must remain on record through his Trustee. If his absence from the list of Defendants vitiates the constitution of the suit, the Plaintiff will have to take the risk of it. We are accordingly of opinion that the order passed by the Lower Court should be maintained and this rule discharged.
A preliminary objection was taken on behalf of the Opposite Party as to the competence of the insolvent to make this application in this Court. It is not necessary to consider this point in view of the fact that this Court issued the rule under sec. 115 which does not require the appearance of any party.
The undesirability of allowing the Defendant who is an insolvent to remain on the record is evident as we are unable to award any costs in favour of the successful party.
Let the record be sent down as early as possible.
S.C.M