JUDGMENT 1. The Petitioners commenced a suit in the Small Cause Court at Sealdah for recovery of money alleged to be due on account of the price of jute sold by them to one Debendra Nath Mukerjee. Debendra died intestate on the 16th July 1907 after the close of the transactions on which the claim is founded. Shortly after his death on the 9th December 1907 a suit was commenced by his eldest son Harendra Nath for partition of the family properties. On the 4th December 1908, Harendra was appointed Receiver of the subject-matter of the litigation and subsequently took possession of all the assets left by his father. The Plaintiffs therefore prayed for a decree for 684 rupees against the estate of Debendra Nath in the hands of the Receiver, and joined as parties Defendants to the suit, Harendra Nath the Receiver as also the other sons of Debendra Nath. The Receiver Defendant resisted the claim, inter alia, on the ground that he as Receiver could not have been sued without the leave of the Court by which he was appointed. The other sons contended that they were not personally liable, and admittedly no part of the assets was in their hands. The learned Small Cause Court Judge held that a personal decree could, not be made against any of the Defendants, inasmuch as upon the allegations in the plaint the claim, if well-founded, was enforceable only against the assets of Debendra Nath; and as these assets were in the hands of the Receiver, the only, decree possible would be against him, but as leave had not been obtained from the Court by which the Receiver had been appointed, the suit could not proceed against him. In this view, the learned Judge dismissed the suit. The Plaintiffs now invite us to discharge this decree and to direct a retrial of the suit. In this view, the learned Judge dismissed the suit. The Plaintiffs now invite us to discharge this decree and to direct a retrial of the suit. It has been argued in support of the rule, first, that it is not necessary for the Plaintiffs to sue the Receiver at all, because what they really seek is a personal decree against the Defendants and, secondly, that if it was necessary for the Plaintiffs to sue the Receiver and to obtain leave of the Court in that behalf, the suit ought not to have been dismissed, but opportunity should have been afforded to the Plaintiffs to enable them to obtain necessary sanction from the Court by which the Receiver was appointed. 2. In so far as the first of these contentions is concerned, it is, in our opinion, obviously unfounded. The Plaintiffs have framed their plaint so as to make the Receiver a necessary party to the suit. Their allegation is that the money which they seek to recover is due from the estate of Debendra Nath, and the prayer in the plaint is to the effect that a decree may be made against the assets of Debendra Nath which are now admittedly in the hands of the Receiver. Consequently the Receiver is a necessary party to the suit. The learned Vakil for the Petitioners placed reliance upon the cases of Miller v. Ram Ran fan Chucker butty I. L. R. 10 Cal. 1014 (1884) Chartered Bank v. Hurish Chunder Neogy 5 C. W. N. xv (1900) and Kumar Suttya Suttya Ghoshal v. Rani Golap Moni Debi 5 C. W. N. 27 (1897)., to show that the Receiver is not a necessary party to a suit of this character. But the cases upon which reliance is placed are clearly distinguishable. The test to be applied to determine whether the Receiver is or is not a necessary party to a litigation was laid down by this Court in the case of Jotindra Nath Choudhry v. Sarfaraj Mia 14 C. W.N. 653 (1910). But the cases upon which reliance is placed are clearly distinguishable. The test to be applied to determine whether the Receiver is or is not a necessary party to a litigation was laid down by this Court in the case of Jotindra Nath Choudhry v. Sarfaraj Mia 14 C. W.N. 653 (1910). That test is this : Where property in the hands of a Receiver is intended to be affected by the result of the litigation, the Receiver is a proper and necessary party to such a suit, because although the appointment of the Receiver does not of itself debar the creditor of the person over whose estate the Receiver has been appointed from suing for his claim, yet if the object of the suit is to interfere with the possession of the Receiver or the jurisdiction of the Court appointing the Receiver, leave of the Court must be obtained and the Receiver made a party to the suit. Now as we have already explained, the frame of the plaint in the case before us shows that the only relief claimed by the Plaintiffs is sought against the assets of Debendra Nath in the hands of the Receiver. Consequently the Receiver is a necessary party to the suit and the plaint was properly framed. The first contention therefore fails. 3. In so far as the second contention of the Petitioners is concerned, it is clearly well-founded and must prevail. The learned Vakil for the Receiver has contended upon the authority of a decision of this Court in the case of Pramatha Nath Gangooly v. Khettra Nath Banerjee I. L. R. 32 Cal. 270: s. c. 9 C.W.N. 247 (1904)., that the consent of the Court to an action against a Receiver appointed by the Court, is a condition precedent to the right of the party to sue and the omission cannot be rectified by a subsequent application for leave to continue an action brought without such permission. After careful consideration of the decision on which reliance has been placed, we regret we are unable to follow it as well-founded on principle. There is no statutory provision which renders it necessary for a litigant to obtain permission of the Court by which the Receiver has been appointed previous to the institution of the suit against him. After careful consideration of the decision on which reliance has been placed, we regret we are unable to follow it as well-founded on principle. There is no statutory provision which renders it necessary for a litigant to obtain permission of the Court by which the Receiver has been appointed previous to the institution of the suit against him. No doubt if such a litigant makes an attempt to disturb the possession of the Receiver, he may be guilty of contempt of Court and may thus render himself liable to be dealt with summarily. It may also be conceded that if such a suit is brought, the Court in which the suit has been instituted will not permit the Plaintiff to harass the Receiver till permission of the Court by which the Receiver was appointed has been obtained. But we are unable to appreciate upon what intelligible principle the position can be defended that because the suit has been instituted without leave previously obtained, it must necessarily be dismissed, and that it is not open to the Court to stay proceedings in the suit with a view to enable the Plaintiff to obtain leave of the Court to proceed with the suit against the Receiver. Mr. Justice Bodilly who decided the case of Pramatha Nath Gangooly v. Khettra Nath Banerjee ILR 32 Cal. 270: S.C. 9 C.W.N. 247(1904) observed that no authority had been cited to him to show that the suit might be brought without leave previously obtained. Possibly, this absence of authority may be attributed to the fact that the suggestion had never before been made that it is not open to the party who has instituted a suit without leave of the Court to proceed with it after leave has been obtained. The only case in which this question appears to have been directly raised is Hirshfield v. Katisher (1894) 30 New York Supplement 1027.. There a suit had been instituted against a Receiver without leave previously obtained. The objection was taken that the suit could not proceed. The Plaintiff thereupon asked for permission to obtain leave and prayed that an opportunity might be given to him by stay of proceedings in the suit. There a suit had been instituted against a Receiver without leave previously obtained. The objection was taken that the suit could not proceed. The Plaintiff thereupon asked for permission to obtain leave and prayed that an opportunity might be given to him by stay of proceedings in the suit. It was held that although the suit had been commenced without leave, the remedy was either a stay of proceedings on the part of the Plaintiff or to punish him for contempt of Court, or both, but not to dismiss the suit, and that it was open to the Court upon application by the Plaintiff to allow him an opportunity to obtain the necessary leave and then to continue the suit. We do not refer to this decision as an authority binding in any way upon this Court, but the case clearly indicates that the view which we take has been previously adopted as well-founded on legal principle. (See also Barton v. Barbour (1881) 104 U. S. 126., where the Supreme Court of the United States was divided in opinion upon the question whether failure to secure leave of Court to sue a Receiver is a mere irregularity or a defect which affects the jurisdiction of the Court). The Court below, therefore, in the case before us ought not to have dismissed the suit, but should have stayed the proceedings for a reasonable time in order to enable the Plaintiffs to apply to the Court by which the Receiver was appointed for leave to proceed with the suit against him. The result is that this rule is made absolute and the order of dismissal discharged. The case will be remitted to the Small Cause Court Judge in order that he may allow an opportunity to the Plaintiffs to obtain the necessary leave. The costs of this rule will be costs in the suit. We assess the hearing fee at two gold mohurs.