NANDIPATI GANGIREDDY Vs. BOMMA REDDY BULLENNA

JUDGEMENT

(1.) This refision-petition is filed by defendants 1 and 2 in O. S. 1/76 Subcourt, gudivada, against an order made in 1. A. 156/75 granting interim maintenance to the plantiff-first respondent herein at the rate of Rs. 400/- p. m. from the date of the petition till the suit is disposed of and permitting her to withdraw the amount from the deposits made by the petitioners herein in the. suit. The first respondent herein filed a suit informa pauperis which was later numbered as'os. l/76 Sub-Court,gudivada,forrecovery of possession of certaia properties which belonged to her husband, late Venkata Reddy. The case of the petitioner is that late Venkata Reddy died possessed of Ac, 3. 42 cents of dry land, Ac 12,85 cents of wet land and a building and some movable properties and she is entitled to them as bis widow and sole-heir defendants 1 and 2 who are Venkatareddi's sister's sons claimed the properties under a will executed by him whereby he bequeathed all the properties in their favour. The plaintiff filed a petition for the appointment of a receiver, LA. 805/74. The Court below held that no case was made out for appointing a receiver but directed the petitioners herein to deposit Rs. 8,000/-per year, On appeai, to this Court, the court directed the petitioners to deposit Rs. 12,000/- per year and accordingly the petitioners herein are depositing she said amount in the lower court. The plaintiff stated that she was an old lady of 60 years requiring the assistance of a cook or servant and she required amounts also for treatment of her illness as well as for maintenance. She therefore prayed that she may be paid Rs 700/- p. m. out of the deposits made by the petitioners by way of interim maintenance. The petitioners herein opposed the petition contending that the claim of the petitioner was grossly exaggerated. It was further contended that the plaintiff had obtained a decree for maintenance in O. S. J/67 when Venkata reddy was alive. Her proper remedy was to execute that decree against the estate of Yenkata Reddy and that she was not entitled to ask for payment from out of the deposits for her interim maintenance. Finally it was contended that the application under Sec. 151 C. P. C. for payment of interim maintenance pending the suit was not maintainable. The court below held that the petition was maintainable and the earlier decree for maintenace obtained during the husband's life-time was not a bar for filing this application. It held that having regard to the circumstances of the case the grant of interim maintenance atrs. 400/-p. m. would be just and proper. In the result, it directed that the petitioner may be permitted to withdraw Rs. 400/-p. m. from date of the petition as interim maintenance from out of the amounts deposited by the petitioners herein into court.

(2.) The petitioners have filed this revision petition challenging the sald order as being made without jurisdiction. As far as the quantum of maintenance is concerned, it is not permirsible for the petitioners to question the correctness of the amount in a revision petition under Sec. 151 C. P. C. I am also of the view that there is no substance in the contention that as the first respondent had obtained a decree against her husband during his lifs time for maintenance, her only remedy is to execute the decree against the estate of the husband and that she is not entitled to ask for interim maintenance in this suit on that ground. The decree for maintenance obtained by her was in her capacity as a wife who had just cause for residing separately from her husband. The fact that the obtatined a decree for maintenance at that time has absolutely no relevance in considering the question whether the petitioner is entitled to ask for interim maintenance pending a suit for recovery of possession of her husband's properties after his death on the ground that she is entitled to them as his heir. Vide Mulla Hindu Law 13th Edn. p. 549 as extracted in AIR 1934 Lahore 167. Sri Bali Reddy therefore very rightly chose to argut mainly on the question as to whether this petition is maintainable wider Sec. 151 C. P. C he submitted that there it no power in the court under S. 151 C. P. C. or any other provision of the Civil Procedure Code to grant interim maintenance pending disposal of the suit to a plaintiff who files a suit for recovery of possession of immovable properties. Ht relied strongly upon the decision of a Bench of this court in G. Appanna v. G. Seethamma (1) where this courthad to consider the powers of the court under Sec. 151 C. P C. to grantinterim maiatentrce pending a suit for maintenance by the wife against her husband. The husband opposed the application as not maintainable as he was contesting her very right to maintennace in the suit. The learned judges after referring to the decision of the Supreme Court in Padam Sen v. State of U. P, (2) and a number of other decisions held that the court had no power to grant interim maintenance in the citrcumstances of that case. In particular they referred to the decision in Mohd. Appul Rahmani v. Tajuanlnssa begam (3) where it was observed that there was overwhelming authority for the position that when the claim made in the plaint is contested, the court has no inherent jurisdiction to grant relief until that claim is determined on its merits and that can only be at the final hearing in the suit. In my view the decision in G. Appanna v. G Seethamma/ (1) and those referred to In that decision including the decision ia Mahommed Abdul Rahman v. Tajuanissa Begum (3) are distinguishable. In G. Appnnna V. G. Seethamma (1) the claim of the plaintiff to maintenance was contested. In this case, however the suit is only for partition and possession by the widow of properties which belonged to her huiband. There cannot be any doubt that even it she is not entitled to claim a share, if it is found her husband has bequeathed the entire property in favour of the petitioners herein, the widow would still be entitled to maintenance out of her husband's properties, there is and can be no contest regarding the plaintiff's right to maintenanoe. Another important circumstance which distinguishes the present ease from the facts in G. Appanna v. G. Seethamma (1) is that here the plaintiff filed aa application for appointment of a receiver and in that application the court instead of appointing a receiver directed the defendants to deposit Into court Rs. 8,000/. per year. This appllication by the plaintiff is that she may be paid some amount every month from out of the deposit. In other words, it is in the nature of an application for appointment of a receiver. If the court is entitled to direct the defendants to deposit the sum of Rs 3,000/-every year, it is equally entitled to give further directions as to the paymnet to the parties out of such deposit. The effect of the decision of the court below is merely to direct a sum of Rs. 400/-per month to be paid to the plaintiff from out of the sums deposited by the defendants into court. If the court is empowered to do so, it would not in my view make any difference if the plaintiff stated that such payment should be by way of interim maintenence.

(3.) The learned counsel for the petitioner relied upon the decision of the supreme Court in Padam Sen vs State of UP. to the effect that the inherent powers under Sec. 151 CPC are with respect to the procedure to be followed by the court in deciding the case before it and these powers are not powers over the substantive rights which any litigant possesses and specific powers have to be conferred on the courts for passing such orders which would effect such rights of a party. He also referred to the observations of this court in G. Appanna vs G. Seethamma that the award of interim maintenance pending decision of a suit cannot be called a procedural matter, nor is it a step towards a final decision, nor is it intended to render such judgment effective, and it cannot be said in aid of the suit and such order cannot therefore be made under S. 151 CPC. It is however to be noted that these observations made in paragraph 5 of the judgment refer only to the award of interim maintenance in a case where the right to maintenance is in contest. If there is no contest with regard to the right to interim maintenance. I do not see any reason why it cannot be said that a direction to pay to the plaintiff a part of the amount which is in deposit under orders of the court in an application for appoint ment of a receiver (it may be by way of interim maintenance) , is not an order in aid of the suit, if the court in such a case considers that the deposit which lies in court, may well be utilised for the payment to a party whose right to maintenance is not in contest. If the amount is not paid, the plaintiff who is a widow and who is deprived of possession of the entire property will not be in a position to effectively prosecute the suit. Instead of allowing her suit to be stifled, if the plaintiff is directed to be paid a certain sum of money which enables her to sustain herself during the pendency of the sust, in my view such a direction would be in aid of the suit and would be necessary to enable the plaintiff to prosecute her suit. In this connection it is to be noted thos the powers conferred under s. 151 CPC are wide and the court is empowered to make such orders as may bs necessary for the ends of Justice or to prevent abuse of the process of the court. For these reasons I am of the view that the decision relied on, in G. Appanna vs G. Seethamma is not applicable to the facts of the case and the petition was rightly held to be maintainable by the lower Court. In Jain vs Jain a Division Bench of the Calcutta High Court held that the Court has power to grant interim maintenance by way of interlocutory relief in the suit, even in a case where there was a denial of the right by the defendant whan the court is of the opinion that the plaintiff has made out a prima facie case. The same view was taken in Garani Gupta vs Gouri Gupta dealing with an application under S. 18 of the Hindu adoptions and Maintenance Act. In both these cases, the decision in mohmmed Abdual Rahaman Tajunnisa was not followed. They preferred to agree with the view expressed in Muniama vs Ranganatha Ayangar where it was held that if the plainsiff could establish a prima facie c se, the court can grant interim maintenance. The learned counsel for the respondents contended that the decision in g Appanna vs G, Seethamma is incorrect and requires re-consideration. In the view which I have taken that the facts in that case are distinguishable from the facts in the present case and that decision is not applicable to the present case, I do not think it necessary to refer the matter to a fuller bench, though perhaps on some future occasion it may become necessary to do so.