JUDGMENT
1. This is an application for the revocation of a sanction granted by the Subordinate Judge of Howrah. The sanction was granted in a suit brought by a lady of the name of Kali Dasi Dasi and her case was that a certain business was the exclusive property of her husband, while the case of the defendant, who is the brother of her deceased husband, was that it was the joint property of the two brothers. In the course of certain proceedings for the appointment of a Receiver it appears that the person whose prosecution has been directed, being the brother of the plaintiff, swore an affidavit to the effect that there are entries in the books of the business showing that the defendant was in fact a servant. Some, if not all, the books of business were apparently brought into Court but it is stated that no clear proof with regard to them was given, and it does not seem to be certain that all the books of the business were produced. It is in respect of this statement in the affidavit that the prosecution has been sanctioned. Now it appears that the petitioner, who is the brother of the plaintiff, is also her am mukhtiar and is the person on whom she depends for the proper prosecution of her suit. Generally speaking it is not desirable that witnesses should be prosecuted while the case in which they have deposed or are about to depose is still pending, and in this particular case, having regard to the position of the petitioner towards the plaintiff, we think the impropriety of such a step is all the greater. We, therefore, set aside the sanction which has been granted by the Subordinate Judge.
2. We may then observe that it has been objected in law that this application should have been made to the District Judge of Hooghly. This argument is based upon the language of Section 195(7) and of Sub-clause (a) of that Sub-section and also on the fact that the number of suits exceeding Rs. 5,000 in value, in which appeals lie from the decision of the Subordinate Judge to this Court, are much fewer in number than the suits of Rs. 5,000 and under in which appeals lie to the District Judge. That in such a case the application for revocation of sanction should be made to the District Judge is the view taken in the cases reported as Imperatrix v Lakshman Sakharam 2 B. 481 : 1 Ind. Dec. (N.S.) 743 and Anant Ramchandra Lottikar In re 11 B. 438 : 6 Ind. Dec. (N.S.) 288, and those oases appear to have been followed in this Court in Maduray Pillay v. Elderton 22 C. 487 : 11 Ind. Dec. (N.S.) 325. Having however formed a firm opinion as to the impropriety of the sanction that has been granted we do not think it necessary, whatever may be the correct reading of Section 195(7), to send the petitioner before us back to the District Court in order to his obtaining relief which we are prepared and are competent to give him.
