Judgement

THIS was a petition by Prem Lal Mullick, the infant adopted son and heir of the testator, through his adoptive mother and next friend, Sreemutty Tregoona Soondery Dossee, to vary an Order of Her Majesty in Council dated the 11th of May, 1895.

The suit in this case (which is reported ante, p. 107) prayed for the administration of the estate of Nundo Lal Mullick, the testator; for the appointment of a receiver pending its determination ; for injunctions against the Administrator-General and the executors restraining the one from accepting a transfer of the estate, and the others from intermeddling therewith; for the removal of the executors, and for accounts against them.

The petition stated that by agreement between the Petitioners attorney and the Administrator-General and his attorney an application was made in the suit for an injunction and receiver on the ground that the Administrator-General was about to dispose of certain of the testators property, maintaining his right to do so as transferee from the executor under sect. 31, Act II. of 1874, while the Plaintiff maintained that such transfer was bad in law; conveyance admitted by both parties, no affidavit to be used, the question to be decided as a question of law. That thereupon a decree was made for an injunction and receiver as prayed, and that the receiver took possession. That an appeal to the High Court in its Appellate jurisdiction was dismissed, but that on appeal to Her Majesty in Council it was allowed, and the whole suit dismissed.

The petition further stated that, pending the appeal to Her Majesty, a decree had been made by the High Court for administration of the estate; an order had been made on the receiver to effect certain repairs and pay Rs. 500 a month to the testators widow; and accounts had been ordered and proceeded with; that these proceedings were not known to the Petitioners London solicitors, and were not brought to the notice of the Judicial Committee.

Branson, for the Petitioner, submitted that the object of the final appeal was merely to decide the question of law; while the effect of the dismissal of the suit was to prevent the High Court from proceeding to deal with those portions of the suit which were not under appeal to Her Majesty. To bring the suit to a conclusion those portions thereof should be dealt with by the High Court with a view to the proper disposal thereof. Accordingly, it was contended that the Order in Council directing the dismissal of the suit should be so amended and varied as to enable the High Court to dispose of the case in due course. Otherwise there would be no suit pending in which the receiver could be made to account, and the executors, if sued by the Administrator-General, would be able to plead res judicata, inasmuch as a suit to enforce their liability had already been dismissed.

Phillips, for the Administrator-General, submitted that no ground had been shewn for. amending the order. The suit had failed; and, inasmuch as the Administrator-General was now in sole control of the testators estate, he could enforce his rights, and the executors liability in proceedings instituted by himself if necessary. A prayer for consequential relief stands or falls with the main object of the suit, and its dismissal will not prevent the Administrator-General from enforcing all claims on behalf of the estate. It was unnecessary to keep the suit alive merely for the receiver, to pass his accounts therein. He was an officer of Court accountable to the Court in that capacity irrespective of pending proceedings.

Branson replied.

1895. August 7. The opinion of their Lordships herein was delivered by

LORD WATSON—

This is a petition by Prem Lal Mullick for the amendment of an Order of Her Majesty in Council, dated the 30th of March, 1895, reversing two decrees of the High Court of Calcutta, pronounced in its Appellate and in its Ordinary Original Civil Jurisdiction, in a suit brought by the Petitioner against the Administr