1. This is an appeal from an order under Section 53 of the Civil Procedure Code, returning a plaint for amendment. The plaintiff was the Mussoorie Bank, Limited, and the defendant was described as Mrs. Sarah G. Barlow, Mussoorie. The plaint goes on in the following words:
George Henry Webb, Manager of the above-named plaintiff’s business, states as follows:
1. The defendant is executrix of the late Charles Grant Barlow who died on the 18th day of May 1885.
2. Colonel Barlow was at the time of his death indebted to the plaintiff “–and so on, giving a detailed account of the several causes of action, and the plaint is signed and verified as follows: ” For the Mussoorie Bank, Limited, G. H. Webb, Manager.
2. The Court below returned the plaint for amendment on the following grounds: First, because the defendant has not been properly described in the plaint. I think this ground fails, as from what I have extracted from the plaint above, it is clear that the defendant is stated to be the executrix of the late Colonel Barlow, and the suit is brought against her in that capacity. The next ground is that the plaint is bad, as the claim is set out as made by George Henry Webb, Manager, and not as on the part of the Bank, but the words should have been: ” The Mussoorie Bank, Limited,” or ” the plaintiff states as follows: As to this I do not think this is a ground for returning the plaint. It does not, in my opinion, come within the restrictive grounds mentioned in Section 53. The intention and meaning of the plaint is very clear, that the circumstances and facts set out apply to the case of the plaintiff Bank, and the words are not capable of any other meaning. The object of the Sections relating to plaints, as far as the present point is concerned, is that the facts which the plaintiff considers essential should be concisely and clearly set out, and that the verification should be made by some one acquainted with these facts, and in this respect the plaint sufficiently fulfils the requirements of the Procedure Code.
3. The third and last ground which the lower Court has thought sufficient to justify its order is that the suit should not have been brought in the form it was brought, but in the form referred to in Section 213 and article 105 of schedule iv of the Procedure Code. But the plaintiff is quite at liberty to bring a suit for money against any person administering to or representing an estate. If such suit be found with reference to the facts in evidence not maintainable, it should be dismissed; but there is no authority for returning a plaint for amendment when it is found that the suit is not maintainable in the form in which it is brought, in order to amend it so as to convert the suit into one of a different character.
4. For these reasons I would set aside the order of the lower Court with costs to be paid by the defendant-respondent, and we direct the lower Court to restore the case to its file of pending suits, and to deal with the same according to law.
5. I concur in holding that there was no sufficient ground for the return of the plaint, and in the proposed order of my brother oldfield.