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TMI Blog1918 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... who had, as stated above, been appointed in the administration suit between the co-sharers to sue Charu Chandra Mitra for arrears amounting to something like ₹ 61,000. 3. On the 4th May 1914, an application was made in the course of that suit by the Receiver for an attachment before judgment and a conditional attachment was in fact issued by the Court. 4. In the meantime, the Angarpatra Coal Company had gone into liquidation and on the 4th November 1914, Charu Charndra Mitra purchased the right, title and interest of the Company from the liquidator 6th November 1914, Charu Chandra Mitra executed a sub lease of those properties in favour of the present petitioners, Braja Bhusan Trigunait and others who were at that time and still are also one-third co-sharers in the property which is the subject of the administration suit. 5. The case of the petitioners is that the purchase of the 4th November 1914, made by Charu Chandra Mitra was in fact made with the money of the petitioners and in their behalf and that Charu Chandra Mitra was a mere benamidar. 6. It is contended that by that purchase and the subsequent lease, the petitioners have entered into the shoes of the An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of properties in charge of the Court, is that unless the Court is satisfied that there is no question at all to try or there is no legal foundation to the claim, leave should not, as a matter' of course, be refused. The onus is, therefore, strongly, on the Court to show that no foundation for any claim has been made out. 13. In this case the petitioners contend that they are--the purchasers of the right, title and interest of the Angarpatra Coal Company and that on the 4th May 1918 when the conditional order of attachment was made, Charu Chandra Mitra, the defendant, had no possession or title thereto. In the second place the petitioners desire to establish that they and not Charu Chandra Mitra are the real purchasers of the interest of the Coal Company. If they can establish that Charu Chandra Mitra is their benamidar and that he acquired that status on the 4th November 1914, then obviously that which can be sold in pursuance of the attachment of the 4th May 1914, must be something exclusive of the right, title and interest of the Angarpatra Coal Company. 14. It is contended by the opposite party and found by the Subordinate Judge that the petitioners have no b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to take evidence if the Court is not inclined to give leave as a matter of course. The question whether there was a benami sale, is a question of fact which cannot be determined without investigation. The question whether the whole right, title and interest of Charu Chandra was attached on the 4th May, is again a question which certainly requires a fuller investigation than that which has been made by the learned Subordinate Judge. From the attachment order it appears that no boundaries are shown to have been published by the Court on the 4th May 1914. But it is contended by the opposite party before us that the Court was subsequently satisfied that the attachment order was sufficient, and on that footing, the Court proceeded to advertise the properties for sale. That again is a question which depends upon evidence. If it should turn out that there was no specification of boundaries which would entitle the decree holder to sell the properties which are now in suit, the petitioners will be seriously prejudiced if the sale is allowed to proceed. The learned Subordinate Judge, however, brushes these considerations aside by the observation that the application is premature and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent matter was a case within the meaning of section 115, Civil Procedure Code, I will assume that it was. An ex parte application or an application to a Court for leave to sue a Receiver may upon the analogy of the case which their Lordships of the Privy Council were called upon to consider in the above cited decision may, I think, be held to be covered by section 115. 22. Then a more serious question is whether there was material irregularity in the exercise of the jurisdiction which was admittedly vested in the Subordinate Judge. In my opinion the omission of the Subordinate Judge to go into the allegations which were made, was material irregularity. If a Court which has jurisdiction to try a suit, declines to go into evidence when required to do so, but merely proceeds to dispose of the suit upon the pleadings or upon allegations made in petitions, that is material irregularity in the exercise of jurisdiction which is, I think, revisable under section 115, Civil Procedure Code Upon the view that I take of the proceedings of the learned Subordinate Judge, there was such material irregularity in this case. On the other hand if he had investigated the facts either by taking ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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