Das, J.:— This appeal is directed against the order of the learned Sub-ordinate Judge dated the 10th August 1926, by which he has issued an injunction upon a Receiver appointed by the District Judge of Hooghly restraining him, “from dispossessing the plaintiff from the properties in suit.” Shortly stated the tracts upon which our decision must be based are as follows: In a suit under the provisions of Section 92 of the CPC, instituted by certain persons against the Mohunt of Tarakeshwar, Amulya Chandra Bhaduri, one of the appellants before is, was appointed a Receiver of the properties appertaining to the Tarakeshwar shrine. It is the case of the plaintiffs, and presumably of the receiver, that the disputed properties appertain to the Tarakeshwar shrine, and the District Judge of Hooghly, in whose Court the charity suit is pending, has dirested the Receiver to take possession of the disputed properties. Now the disputed properties undoubtedly stand in the name of Mahabir Prasad. Mahabir Prasad was registered in the land registration department as the owner of these properties. The title-deeds stand in his name. On Mahabir's death the respondent Kashi Nath who claimed to be the son of Mahabir, was substituted in the land registration department in the place of Mahabir Prasad. The case of the Receiver is that Mahabir was the benamidar of the Mohunt of Tarakeshwar and that as such the disputed properties are the properties of the Tarakeshwar shrine. In regard to Kashi Nath, the Receiver says that he is not the son of Mahabir but is the illegitimate son of the Mohunt of Tarakeshwar. It will, therefore, be noticed that two very intricate and complicated questions arise first, the question of benami and secondly, the question of legitimacy.
2. Now this being the position, the receiver, armed with the authority of the District Judge of Hooghly, is attempting to take possession of the properties which are undoubtedly in the possession of Kashi Nath.
3. Correspondence has been placed before us which establishes that communication is proceeding between the District Judge of Hooghly and the District Magistrate of Balia with a view to put the receiver in possession of the disputed properties with police aid. The position is undoubtedly a serious one, and I have no doubt whatever that the learned District Judge of Hooghly has not been placed in possession of all the facts connected with this case.
4. In this state of affairs the respondent Kashi Nath instituted a suit against the Receiver claiming an injunction against him restraining him from interfering with his possession in any of the properties in dispute. Pending the disposal of the suit, he applied for a temporary injunction and the learned Sub-ordinate Judge has acceded to that application; hence this appeal to this Court.
5. Mr. Pugh contends that the order of the learned Sub-ordinate Judge is bid on two grounds: first, on the ground that the leave to sue the Receiver was not obtained and that therefore the learned Sub-ordinate Judge should not have made an effective order against the Receiver; and, secondly, upon the ground that there being an equally effective remedy open to Kashi Nath, it was not open to him to apply for an injunction as against the Receiver. The latter ground is a short one and I will dispose of it at once. Reliance is placed upon Section 56, Clause (1) of the Specific Relief Act which provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by other usual mode of proceeding. Mr. Pugh, appearing on behalf of the Receiver contends that there is a well known remedy available to a party who is aggrieved by any act of the Receiver and that remedy is to represent his grievances to the Court which appointed the Receiver. There is no doubt whatever that it was open to Kashi Nath to go to the District Judge of Hooghly and ask to be examined pro inter esse suo; but I am not satisfied that the procedure such as is suggested by Mr. Pugh would give the applicant complete relief in a case of this nature where complicated questions of facts arise. There is another remedy open to the plaintiff and it is to bring a suit as against the Receiver with leave of the Court that appointed the Receiver. I am not prepared to accede to the argument that Kashi Nath could obtain, to adopt the words of the statute, “equally efficacious relief” in an examination pro inter esse suo before the District Judge of Hooghly.
6. But the first point argued by Mr. Pugh raises a question of some difficulty. Now, if the plaintiff were a party to the charity suit, then no question could possibly arise; and it would make no difference whatever whether the receiver has obtained actual possession of the property or not; but in this case we have two undoubted facts to proceed upon first, that Kashi Nath is not a party to the suit in which the receiver has been appointed; and, secondly, the receiver has not obtained possession of the properties which are the subject-matter of the suit. Now this being the position, the question arises whether it is open to the plaintiff to bring a suit as against the receiver without leave of the Court. The rule is firmly established that as against a stranger to the action, who is in actual possession, the appointment of a receiver is of no effect: See Halsbury's Laws of England, Vol. 24, page 379. But it is equally well settled that you cannot sue a Receiver except with the leave of the Court. The latter rule is founded upon the doctrine that a suit against the receiver is in substance a suit against the Court that appointed the receiver and that therefore a suit against the receiver should not be permitted except upon leave duly obtained from the Court that appointed the receiver. It was contended before us that this rule would not operate in the case where a stranger to the action is asserting his possession as against the receiver who is not in possession; but the answer to that argument is to be found in the decision of the Court of appeal in Searle v. Choat(1).
7. In that case the defendant obtained a decree against one Davies for £211, and be obtained an order, by way of equitable execution that a receiver should be appointed to receive the rents and profits, amongst other things, of certain leasehold houses in which Davies was interested; and the appointment was expressly made without prejudice to the right of the prior encumbrancers on the said premises who might think proper to take possession of the same by virtue of their respective securities, or, if any prior incumbrancer was in possession, then, without prejudice to such possession. Now it happened that the plaintiff was in possession by virtue of a mortgage which had been executed in his favour by Davies. The order appointing the receiver undoubtedly protected the rights of the plaintiff in so far as he declared that the receiver was to take possession without prejudice to the possession of the prior encumbrancers. But, notwithstanding the order, the receiver served notice upon the tenants calling upon them to pay rent to him. Thereupon the plaintiff who, be it remembered was a stranger to the action in which the receiver was appointed, and was actually in possession of the properties, instituted a suit against the defendant who was the plaintiff in the action in which the receiver was appointed and also as against the receiver and claimed an injunction as against the receiver restraining him from interfering in any way with the possession of the plaintiff. This application was refused on the ground that the proper procedure was for the plaintiff to come to the Court that had appointed the receiver and ask for leave of the Court before taking any proceedings against the receiver. I cannot distinguish the facts of that case from this case, and I have not been referred to any authority which in any way throws doubt upon that case. At the same time I am clearly of opinion that the rule which protects strangers to the action operates, and that the possession of such strangers cannot be interfered with by the receiver. The conclusion to which I arrive on a consideration of these different principles is this that, so long as the stranger whose possession is challenged by the receiver acts strictly, on the defensive, the receiver cannot touch him in anyway, but that, if he comes as a complainant and asks the Court to investigate the conduct of the receiver, he must obtain the leave of the Court by which the receiver was appointed. Now in this case the plaintiff is complaining of the action of the receiver. He is the plaintiff in the action and is asking the Court to restrain the receiver from taking certain actions against him. In my opinion the authority to which I have referred establishes that he must go to the Court which appointed the receiver, represent the facts to that Court and ask the sanction of that Court for leave to sue the receiver. I cannot imagine that any Court can possibly refuse its sanction if all the facts are brought to the notice of that Court. Mr. Pugh informs us that the plaintiff has not taken the trouble to represent the facts to the District Judge of Hooghly. We know all the facts, but it is obvious that the learned District Judge of Hooghly is not aware of the facts that all the documents of title stand in the name of Mahabir Prasad, that Mahabir Prosad was recorded in the land registration department as the owner of the properties and that the present plaintiff has been substituted in the records of the land registration department as the son of Mahabir Prasad. I may mention that the learned Chief Justice of this Court, sitting with another Judge, came to the conclusion, it is true, in an interlocutory proceeding, that there was no reason to take the view that Kashi Nath was not the son of Mahabir.
8. As has been pointed out, there are two remedies available to the plaintiffs; one to go to the District Judge and apply to be examined pro inter esse sua; the other to institute a suit as against the receiver with the sanction of the learned District Judge of Hooghly. As I have said, in a case of this nature, where complicated questions of facts arise, the proper remedy would be a suit with the leave of the Court. The leave of the Court has not been obtained; but it is still open to the plaintiff to go to the Court of the learned District Judge of Hooghly and to obtain the sanction of that Court to the suit. So far as the injunction is concerned, I am clearly of opinion that order must go as the leave of the Court had not been obtained at the time when the order for injunction was passed as against the Receiver. I have asked Mr. Pugh to represent to his client that it will serve no useful purpose if he persists in making attempts to obtain possession of the properties from Kashi Nath through police aid. Until it is determined in a suit to which he is a party, that the disputed properties belong to the Tarkeshwar shrine, Kashinath would be entitled to rely on his possessory title and resist every attempt on the part of the receiver to take possession of the properties; and I strongly recommend that no further action should be taken in the matter by the receiver until this suit is decided; but, of course, the learned Sub-ordinate Judge of Shahabad would have no power to decide the suit until leave of the District Judge of Hooghly has first been obtained.
9. In the view which I take I would allow the appeal, set aside the order of the learned Sub-ordinate Judge and dismiss the application of the plaintiffs. I would make no order for costs either in this Court or in the Court below.
Allanson, J.:— I agree.
10. Appeal allowed.