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Before Mr. Justice Loch and Mr. Justice Markby.


1870 Nov. 9.

Act XX of 1865, s. 34-Conviction by a Magistrate for practising as a Mookhtar in the Reve

nue Court without a Certificate-Jurisdiction. Reference.—Mr. D. M. Testro, Assistant Magistrate of Khoordah, has fined the appellant, under section 34 of Act XX of 1865, for practising as a Revenue Agent in the office of the Assistant Collector of Khoordah, without having the certificate required by the Act.

This order appears to me to be illegal, as such a fine could only be imposed by the Revenue officer in whose Court the appellant practised. I therefore forward the papers of the case, in order that the sentence may be set aside as illegal.

Order of the High Court. LOCH, J.-We think that there has been a formal error on the part of the Assistant Magistrate in transferring this case from the Revenue to the Crimi. nal side of his Court, and trying it in his capacity of Assistant Magistrate and not in that of Assistant Collector. This error, however, does not appear to be material, as Mr. Testro is both Assistant Collector and Assistant Magistrate, and the offence was committed before him in the former capacity, and as Assistant Collector he might have disposed of the case. The error, we think, may be rectified by his drawing up a fresh order in his capacity of Assistant Collector and filing the proceedings in the Revenue side of his office.

Before Mr Justice Norman.


1870 Aug. 26.

Plaint-Signature and Verification-Practice. Where the plaintiffs described themselves as lately carrying on business under the name of C. and Co., held, that there was no irregularity in the plaint being signed by C. and Co., and verified only by A. B., one of the partners.

The plaintiffs in this suit vere Robert Lachlan, Thomas Greenhill, and Arthur Bois, lately carrying on business in co-partnership at Dharramtolla, • in Calcutta, under the style and firm of Cook and Co., and the plaint was

signed “ Cook and Co." and verified by Arthur Bois alone.

Mr. Ingram, on behalf of the defendant, applied, on notice, to have the

* Reference to the High Court, under section 434 of the Code of Criminal Procedure, by the Sessions Judge of Cuttack, under his letter No. 251, dated 28th September 1870.




plaint taken off the file. He contended that, under section 27, Act VIII of 1859 (1), the plaint ought to be subscribed and verified by all the partners. If only one partner knew all the facts of the case, he ought to have obtained the permission of the Court to subscribe and verify alone under section 28 (2). Besides, in this case, the partners say they lately carried on business in partnership, consequently the firm of Cook and Co. did not exist as far as the plaintiffs were concerned; and the simple signature of Cook and Co. was therefore not sufficient. Supposing the statements in the plaint were all false, the defendant would not be able to prosecute any of the plaintiffs, except Bois.

The Advocate-General (offg.) contra was not called upon.


NORMAN, J.-In this case the plaint has been admitted, and supposing there were any irregularities in the subscription and verification, I certainly would not take it off the file now. But it seems to me that there are such irregularities as supposed by Mr. Ingram. It has been the practice of this Court in a suit brought by a firm to allow a member of the firm to subscribe and verify the plaint; and even if it were a wrong practice, which I do not think it is, I should be disinclined to interfere with it. As regards the objection that the firm of Cook and Co. does not exist as far as the plaintiffs are concerned, the old firm continues to exist so far as it is necessary for the winding up of its business. For that purpose the members of a partnership are entitled to use the name of their late firm so long as the partnership has not been wholly wound up. I think the name of Cook and Co. bas been properly used. [Mr. Ingram-It does not appear it has been used by any member of the firm.] NORMAN, J.-If it has not, the signature is a forgery.

Application dismissed.

Attorneys for plaintiff: Messrs. Pittar and Camell.

Attorney for defendant: Mr. Dover.

(1) Act VIII of 1859, s. 27.-" The plaint to be subscribed and verified on behalf of shall be subscribed by the plaintiff and the plaintiff by any person whom the his pleader (if any), and shall be verified Court may consider competent to make the at the foot by the plaintiff in the manner verification. In suits by a Corporation or following, or to the like effect : 1, A. B., a Company authorised to sue and be sued the plaintiff named in the above plaint, in the name of an officer or trustees, the do declare that which is stated therein is plaint shall be subscribed and verified on true to the best of my information and behalf of the Corporation or Company by belief."

any Director, Secretary, or other prin(2) Act VIII of 1859, s. 28.—" If the cipal officer of the Corporation or Company plaintiff, by reason of absence, or for other who may be able to depose to the facts of good cause, be unable to subscribe and verify the case." the plaint, the Court may allow the plaint

Before Mr. Justice E. Jackson and Mr. Justice Mitter.

KUNDU (Plaintiff).*

1870 August 18.

Jurisdiction-Special Appeal-Interference by the High Court in a Case cognizable by the

Small Cause Court-Act XXIII of 1861, s. 13.

In a suit cognizable by the Small Cause Court, and in which no special appeal lies to the High Court under Section 13, Act XXIII of 1861, the High Court exercised their extraordinary powers and dismissed the suit.


THE plaintiff

, at a sale held in execution of a decree passed in favor of the defendant, purchased the right, title, and interest of the judgment-debtor of, and in, a certain parcel of land. At the suit of a third party, it was declared that the judgment-debtor had no right in the property sold. The plaintiff brought the present suit against the defendant for recovery of rupees 63-2, being the amount paid by him into Court for the purchase of the property sold in auction, and taken out therefrom by the defendant in satisfaction of his decree.

The defence set up was that the plaintiff was not entitled to a refund of the purchase-money as he should have used due diligence before his purchase in ascertaining the right which was to be sold.

The Moonsiff passed a decree in favor of the plaintiff.
On appeal, the Subordinate Judge confirmed the decree of the lower Court.
The defendant appealed to the High Court.

Baboo Rashbehari Ghose for the appellant.

The judgment of the Court was delivered by

JACKSON, J.-We think the judgment of the lower Appellate Court ought not to be allowed to stand.

In this case, the plaintiff had, in execution of decree, purchased the rights and interests of his judgment-debtor in a certain jote. Subsequently, in the course of proceedings in the Civil Court, it was determined that the said judgment-debtor had no rights and interests whatever in that jote, and the plaintiff, as purchaser, accordingly, obtained nothing by his purchase. He has now brought this suit to recover from the decree-holder the price which he paid at the auction sale.

Both Courts have decreed the claim. They seem to rest their decision upon the case of Greesh Chunder Pottar v. Sookhooda Moyee Dabee (1), but this

* Special Appeal, No. 211 of 1870, from a decree of the Subordinate Judge of East Burdwan, dated the 30th November 1869, affirming a decree of the Moonsiff of that district, dated the 18th July 1869.

(1) 1 W. R., 55.





1870 decision, in the first place, is by no means analogous to the case, and in the

next place, the decision itself was set aside by the Full Bench decision in Sorr

damini Chowdhrain v. Krishna Kishor Poddar (1), ard it is quite clear that the Chund BaHa- purchaser at such an auction sale is at liberty to purchase or not as he chooses

that the maxim of caveat emptor most thoroughly applies, and that he has no claim as against any person for his own act in purchasing certain property as the rights and interests of a judgment-debtor, even if it should afterwards tur out that that property did not belong to the said judgment-debtor.

We have no doubt whatever that, upon the law of the case, the decision of the Judge ought to be set aside, and the special appeal to this Court allowed.

Some contest has been raised before us as to whether a special appeal lies in this case; but whether it is so or not, we think this is a case of that sort that we ought to set aside the decision under our extraordinary powers, even if we could not interfere in special appeal.

We set aside the decision of the Judge, and dismiss the plaintiff's suit with costs.

(1) 4 B. L. R., F. B., 11.


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