JUDGMENT

Collister, J. - This is a defendant's appeal. The defendant-appellant is the Court of Wards at Muzaffarnagar, represented by the Collector, and the action out of which this appeal arises was brought by the plaintiff for recovery of a sum of Rs. 26-2-0. It appears that the estate of Khan Bahadur Muzaffar Ali Khan had been taken over by the Court of Wards. Muzaffar Ali Khan was an Honorary Assistant Collector and it is alleged that in that capacity he decreed a suit for arrears of rent in favour of the plaintiff against one Bakhshi, the deceased father of respondent 2, Pitam. Thereafter execution was taken out and it is alleged that on 10th February 1931, the decretal money was paid by the judgment-debtor to Khan Bahadur Muzaffar Ali Khan, who thereupon struck off the execution case, recording full satisfaction of the claim. The money was, however, never paid to the plaintiff, but was converted by Khan Bahadur Muzaffar Ali Khan to his own use. Hence this suit for recovery of Rs. 2612-0 plus interest, the total claim being Rupees 36-10-0.

2. The suit was instituted on 10th April 1934, and on 31st May 1935, it was dismissed by the Munsif of Muzaffarnagar on the ground that the plaintiff had no cause of action. Only one issue was decided by the trial Court. On 15th August 1935,' an appeal was filed in the Court of the Additional Subordinate Judge of Muzaffarnagar and four months later, on 18th December 1935 - according to information given to me by learned Counsel for the parties - Khan Bahadur Muzaffar Ali Khan died. On 8th August 1936, the lower Appellate Court reversed the finding of the trial Court and remanded the suit to that Court with directions to re-admit it under its original number and determine the remaining issues. It is against that order of remand that this appeal has been preferred by defendant 1, i.e. the Court of Wards.

3. Learned Counsel for the defendant-appellant pleads that if the suit arises ex contractu, it is barred by Section 37, Court of Wards Act, and that if it arises ex delicto; then it lay against the ward himself and not against the defendant appellant. It appears to me that, according to the allegations in the plaint, the case has two aspects. It may well be said that, when the judgment-debtor of the rent suit handed over this money to Khan Bahadur Muzaffar Ali Khan for payment to the plaintiff, an implied contract of agency came into being, and from that point of view the suit would be barred u/s 37 of the Act, which provides among other things that a ward shall not be competent to enter into any contract which may involve him in pecuniary liability. But the matter has also another aspect. It may be said that the handing over of this money to the Honorary Assistant Collector was tantamount to making a deposit in Court - Khan Bahadur Muzaffar Ali Khan being the Presiding Officer of that Court - and from this point of view the conversion of this money to his own use by Khan Bahadur Muzaffar Ali Khan would clearly be a tort. The Munsif has said in his judgment that the suit has not been framed as an action in tort and this observation finds some support from the allegations in paras. 3 and 5 of the plaint; but in para. 7 of the plaint it is said that:

Muzafiar Ali Khan practised this fraud and deception and also misappropriated the amount and thus he has alto committed an offence and defendant 1 is in every way liable for payment of the amount to the plaintiff.

4. According to these allegations, the claim for damages arose ex delicto rather than ex contractu. Learned Counsel for the plaintiff-respondent contends that it was an action in tort, and learned Counsel for the defendant-appellant himself in ground No. 4 of his memorandum of appeal stated as follows : "Because the action, if any, lay in tort and as such Muzaffar Ali Khan was liable only personally." However even in argument the plea of contract was only hinted at by learned Counsel for the defendant-appellant and it was virtually accepte