Allsop and Sinha, JJ.:— This is an appeal against the judgment and decree of the learned Civil Judge of Bulandshahr by which he dismissed the plaintiff's suit claiming certain reliefs by way of declaration and injunction. The facts briefly appear to be these. There was at Dibai, in the district of Bulandshahr a ginning and pressing factory which was known as Sukhar and Shyam Lal Cotton Ginning and Pressing Factory. This factory, according to the plaint, was owned by a large number of partners exceeding twenty in number. Its legality appears to be doubtful, but we are not concerned with that question and shall leave it at that. It, however, appears that a joint Hindu family partnership called Sukhanand Shyam Lal really owned it. It further appears that the firm Sukhanand Shyam Lal owed a large amount to a Bombay firm, Messrs Kila Chand Dev Chand Ltd. On the 30th of April, 1933, an equitable mortgage was granted by the firm Sukhanand Shyam Lal in favour of the Bombay firm for a sum of Rs. 1,78,000 odd. On the 18th of May, 1933, the Bombay firm brought a suit for the enforcement of their mortgage and prayed the High Court at Bombay for the appointment of a receiver. The High Court appointed one Mr. Nand Lal as the receiver. This Mr. Nand Lal was one of the Directors of Messrs Kila Chand Dev Chand Ltd. He had an agent serving under him named Murarji Udhavji. Nand Lal is defendant No. 1 and Murarji is defendant No. 3 in the suit.
It has come in evidence that, according to a resolution which was passed on the 20th of November, 1933, Lala Shyam Lal Gomatwala was appointed, manager of the factory and he took actual possession of the same the very next day, that is, on the 21st Page: 256of November, 1933. Soon after, the defendant No. 3 purporting to act on behalf of the defendant No. 1, made an application to the District Magistrate of Bulandshahr praying that steps under section 145 of the Criminal Procedure Code, be taken against Shyam Lal Gomatwala who, according to Murarji Udhavji, was in wrongful possession of the property. On the 26th of November, 1933, the District Magistrate appointed Shyam Lal Gomatwala as receiver. In July, 1934 this matter was brought up to this Court. It came to the conclusion that the appointment by the District Magistrate of Bulandshahr of Shyam Lal Gomatwala as receiver was an improper order, because the entire proceedings were pending in the court of Bombay and the Bombay court alone had jurisdiction to decide this matter. In 1936 Murarji Udhavji, the agent of Mr. Nand Lal, applied to the District Magistrate of Bulandshahr that Shyam Lal Gomatwala should be called upon to render accounts for the period during which he had acted as receiver of the estate. The learned Magistrate came to the conclusion that Shyam Lal Gomatwala could not be called upon to render accounts. This order was set aside in revision by this Court on the 16th of November, 1937. On the 12th of December, 1937, Shyam Lal Gomatwala brought the present suit and cited as defendants. (1) Mr. Nand Lal, (2) Kila Chand Dev Chand and (3) Murarji Udhavji. His case, in the main, was that the defendants had no right to move the criminal court to call upon him to furnish accounts. On this basis he claimed the following reliefs:
(a) A declaration that defendant No. 1 or 2 has no title to the profits, if any, of the factory which may have accrued due during the time that the plaintiff continued as receiver or later when he continued in possession of the factory, as manager.
(b) A declaration that the defendant No. 1 or defendant No. 3 has no right to proceed with the application for an account and deposit of money in the criminal court.
(c) An injunction restraining the defendant No. 3 from proceeding with his application aforesaid in the criminal court.
All the three defendants filed separate defences, but these defences did not come in conflict with one another. On the other hand, their defence in the main which was identical was to the effect that the defendant No. 1 was acting as a receiver in pursuance of an order of the Bombay High Court and no suit could be either against him or his agent, defendant No. 3, without permission of that Court. The further defence was that the defendant Page: 257No. 2 was, under the compromise decree which was passed on the 25th of January, 1937, entitled to claim accounts from the plaintiff. Lastly it was pleaded that no injunction could be granted in the terms prayed for.
The learned Civil Judge held that the suit could not be brought without the permission of the Bombay Court. He also held that an injunction in the terms prayed for, could be granted. Lastly he came to the conclusion that the compromise decree gave the defendant No. 2 a right to claim accounts from the plaintiff. In this view of the case he dismissed the suit in toto.
Against the above decree Shyam Lal Gomatwala has come in appeal.
We do not agree with the learned Civil Judge in holding that the compromise decree necessarily gave the defendant No. 2 a right to claim accounts from the plaintiff. We, however, deem it proper to say that this question should be left open. The decree which is printed at page 51 of the paper book, is somewhat vaguely worded and the rights of the parties cannot be definitely ascertained from it.
On the question of injunction we are of opinion that the approach of the learned Civil Judge was not the proper approach. Injunctions can be granted in certain suitable cases, but no permanent injunction can be granted restraining a party from moving a court for the redress of his grievance. This will be an embargo upon the undoubted right of a party. The finding of the learned Civil Judge means what the law does not warrant. He has restrained the defendant No. 3 from permanently seeking a relief in a court of law. This he could not do.
Coming to the last question as to whether the suit could be proceeded with without the permission of the Bombay Court, the learned counsel for the appellant has argued that no such permission was necessary. It may be that in the case of a receiver appointed by the insolvency court, permission may or may not be necessary, but in a case where a receiver has been appointed under order XL, rule 1 of the Code of Civil Procedure, as the present receiver was, the permission of the court is absolutely necessary. The property does not vest in him, it remains with the court but in the actual custody of the receiver. The language of order XL, rule 1 itself makes it plain. The point was considered by an eminent English Judge, Lord Justice Fry. Said His Page: 258Lordship in the well known case of In re Henry Pound, Son & Hutchins Ltd. (1889) 42 Ch.D 402:
“Now, where property is in possession of an officer of the Court, and there are legal or equitable rights in that property not vested in the parties to the action or the persons who are before the Court, which legal or equitable rights are not the subject of the administration then going on, then the Court requires that the person who claims to enforce those rights shall apply for leave to enforce them. The right may be a right to take possession, or a right to bring an action, or a right to do various other things; but the Court requires an application to be made to it.”
There has been a consensus of opinion on this point. So far as this Court is concerned, the matter seems to have been concluded by the case of Maharana Kunwar v. E.V David (1924) I.L.R 46 All. 16. There is a very elaborate discussion of the question in Nrishingha Charan Nandi Choudhry v. Thakur Ashutosh Deo Ghatwal A.I.R 1938 Pat. 487.
It has been argued by the learned counsel for the appellant, that he is entitled to some relief against the defendant No. 2. He contends that whatever defects may vitiate his claim against defendant No. 1 and defendant No. 3, there is no such, flaw as regards the second defendant. He makes a prayer in the alternative for an amendment of the plaint.
To the prayer for an amendment of the plaint we cannot accede. The allegations in the plaint, as also the manner in which the case proceeded to trial and the plaintiff secured judgment from the learned Civil Judge, clearly indicate that he treated the defendant No. 1 or his agent, defendant No. 3, as the only wrong doer. It must also be borne in mind that on the death of Mr. Nand Lal during the pendency of the appeal, the plaintiff himself prayed for the substitution of the name of Mr. Tulshi Das Kila Chand, the present receiver under the orders of the Bombay High Court. It is much too late in the day to grant the prayer for amendment or to split up the case into two parts, one against defendants Nos. 1 and 3, and the other against the second defendant. In this view of the case the appeal has no merits and must be dismissed.
On the question of costs we do not think it is a case in which costs should necessarily follow the event. We have not accepted the finding of the learned Civil Judge on a very important issue in the case, namely, the right of the defendant No. 2, to claim any Page: 259relief against the plaintiff. All things considered, we think it is a fit case in which parties should bear their own costs of the appeal.
We therefore, affirm the decree of the learned Civil Judge and dismiss the appeal, but direct the parties to bear their own costs in this Court.