LAWS(ORI)-1952-8-10

GYANENDRA PRASAD BOSE Vs. RAJENDRA PRASAD BOSE AND

Decided On August 20, 1952
Gyanendra Prasad Bose Appellant
V/S
Rajendra Prasad Bose And Respondents

JUDGEMENT

(1.) DEFENDANT No. 1 is the Petitioner before us. The matter arises out of a suit for partition. The Plaintiff has admittedly 8 annas share in the suit properties. The Plaintiff had made an application for appointment of a receiver. On 21 -9 -50 the receiver matter was dropped by consent of parties, Defendant No. 1 having agreed to pay a sum of Rs. 2000/ - towards the maintenance of the Plaintiff. Subsequently the Plaintiff had made further petitions to the Court for enhancing the allowance which were dismissed. The present petition was filed on 29 -6 -51 for raising maintenance allowance of Rs. 2,000/ - to rupees ten thousand and odd (Rs. 10,000 and odd) and for meeting expenses on account of the birth of a child to the Plaintiff for paying fees to the lawyers engaged on behalf of the Plaintiff in the case and also for meeting litigation expenses of the pending partition suit. The learned court below has dismissed the prayer for enhancing the maintenance allowance and has allowed a sum of Rs. 380/ - towards the expenses on account of the birth of a new child as against his claim of Rs. 1380/ - a sum of Rs. 1000/ - towards the fees of the lawyer as against his claim of Rs. 3,575/ - and a further sum of Rs. 1000/ - towards the litigation expenses. Defendant No. 1 has come up in this revision challenging the amounts allowed by the court below in favour of the Plaintiff.

(2.) THE first point taken up by Mr. B. Mohapatra on behalf of the present Petitioner is that under no provisions of the Code of Civil Procedure the Court has power to make an order to either of the parties to make such payments as has been done by it, to other party. The receiver matter having been dropped, he is not a receiver and simply in the role of a party.

(3.) BUT a further contention has been raised by Mr. Rao, invoking the provisions of Section 151, Code of Civil Procedure, that the Court below is perfectly competent to pass such an order as he has done for the ends of justice as required under the said section. It is admitted that the present Plaintiff is entitled to 8 annas share in respect of these properties and also that the Petitioner -Defendant No. 1 is in charge of the management of the entire properties. The suit properties having been valued at Rs. 2 lakhs. We have got a decision of the Madras High Court exactly in all fours reported in Subbaya Maniyagarar v. Kandaswami and Anr. where in the suit was one for partition and a petition also was filed on behalf of the minors to pay maintenance allowance. A point having been raised that there was no provision in the Code of Civil Procedure empowering a court to make such order compelling a party to make payments to other party, it was contended that such a petition was not maintainable, the only remedy was to get a receiver appointed, and when there was no receiver the court had no power to make order for payments. It was decided in that case that on the principles of natural justice the minor Plaintiffs who were admittedly entitled to maintenance should not be allowed to starve while their partition suit was going on, and an order allowing the maintenance on a petition for their maintenance filed in the partition suit on their behalf is within the jurisdiction of the court under Section 151 Code of Civil Procedure It is quite reasonable to accept the view expressed in the decision quoted above. The principle laid down there also applies to the present case inasmuch as here the Plaintiff also has got to fight out the litigation and bear expenses thereof. He has also to celebrate occasional functions in the family. Defendant No. 1 being admittedly in the sole charge of management of the properties including the -/8/ - share of Plaintiff the court below as perfectly competent to exercise jurisdiction under Section 151 Code of Civil Procedure in ordering Defendant No. 1 to make payments as it has done. We find also that the payment in respect of each of the items that it has allowed in quite fair and lenient.