TOTARAM ICHHARAM WANI Vs. DATTU MANGU WANI

JUDGEMENT

(1.) THIS is a revision application made in respect of two orders made by the First Class Subordinate Judge of Jalgaon, one made on August 18, and the other on September 9, 1941.

(2.) THE plaintiffs are suing for partition, and they filed a plaint on August 18, 1941, with a petition for leave to sue in forma pauperis, and on the same day,. and before their application for leave to sue in forma pauperis had been considered, the learned Judge appointed ex parte commissioners under Order XXXIX, Rule 7, of the Civil Procedure Code, 1908, with power to dig up the places on the defendants' land shown by the plaintiffs for the purpose of taking possession of ornaments. Subsequently on notice to the defendants the order was continued on September9.

(3.) THE second point taken is that the learned Judge made the original order of August 18 without notice to the defendants, contrary, it is said, to the provisions of Order XXXIX, Rule 8 . THE point really is of merely academic interest, because the learned Judge continued the order for appointment of Commissioners on September 9 on notice to the defendants, and after hearing argument, there is no ground for setting aside the second order for want of notice, and the second order has superseded the first order, so that there is no object in setting aside the first order. I may point out that in cases in which it is necessary to take action promptly in order to prevent property from being made away with by the defendant, the Court, before proceeding under Order XXXIX, Rule 7, can always appoint a receiver or grant an injunction ex parte. THE appointment of Commissioners, which was made in this case ex parte, was really less detrimental to the defendants than would have been the appointment of the same persons as receivers. THEre is, therefore, no real substance in the defendants' objection that the Commissioners were appointed in the first instance without notice. But, as I have said, since the appointment was continued after notice, the point really does not arise.