MANORAMA DASI Vs. SABITA DASI

JUDGEMENT

(1.) THIS Rule has been obtained by the deft, against order passed by the Dist. J., Murshidabad directing her not to alienate certain properties without the permission of the Ct.

(2.) THE facts briefly are as follows : A suit was instituted 'in forma pauperis' by Sabita Dasi, a minor represented by her guardian, for a declaration that she was entitled to main, tenance out of the property of her deceased father and for a declaration of a charge for her maintenance on those properties. The property was in possession of her step -mother who inherited a limited interest in that property on the death of the father of Sabita Dasi. While the application for permission to sue as a pauper was pending, Sabita applied for an injunction against her step -mother restraining her from disposing of the property pending the disposal of the suit on the ground that if the property were disposed of in the meantime there would be nothing left upon which she could get a charge for her maintenance. She made the usual allegations that her step, mother was disposing of the property for the purpose of depriving her of her rights. The learned Subordinate Judge before whom this application was made did not grant an injunction in the broad terms prayed for, but restrained the step -mother from selling any property without the permission of the Ct. till the disposal of the suit. His intention obviously was to prevent the step -mother from disposing of the property except for legal necessity pending the disposal of the suit. An appeal to the Dist. J. was dismissed. Hence this rule.

(3.) IN the case relied on by the learned Advocate for the petnr., namely, the case of Purna Chandra v. Tara Prosad, 21 C. W. N. 870 : (A. I. R. (4) 1917 Cal. 852) the question of inherent jurisdiction was never argued or decided. All that this Ct. decided was that, pending the disposal of an application to sue in 'forma pauperis,' there was no suit before the Ct. and therefore the Ct. had no jurisdiction to pass an order under Order 38, Rule 5 of the Code, namely, an order of attachment before judgment. In the present case however the order has not been passed under Order 39, Rule 1 but in the exercise of the inherent powers of the Ct. Therefore this decision has really no application; on the other hand, there are decisions of other High Courts which support the view that a Ct. may, in the exercise of its inherent jurisdiction, pass an order which partakes of the nature of an order under Order 39 where no suit is pending by reason of the fact that the disposal of an application for leave to sue as a pauper had not yet been decided. I would refer to one of these eases, namely, the case of Dhaneshwar Nath v. Ghanashyam Dhar : AIR1940All185 . The decision of the Bombay High Court has gone still further. In the case of Totaram Ichharam v. Dattu Mangu A. I. R. (30) 1943 Bom. 143 : (I. L. R. (1943) Bom. 138) Beaumont C. J. held that the filing of an application in the form of a plaint asking permission to sue 'in forma pauperis' really commences the suit and pending the determination of the application the deft. has a right to apply under Order 39, Rule 7, Civil P. C. I hold therefore that the Ct. has inherent jurisdiction to make an order like the one which has been made in the exercise of the inherent powers saved by the provision of Section 151, Civil P. C.