KAMALATHAMMAL MINOR BY GUARDIAN MYSORE KRISHNAMACHARIAR Vs. CVSRINIVASACHARIAR

JUDGEMENT

(1.) A preliminary objection has been taken that there is no appeal in this case. The appeals preferred against an order of the Subordinate Judge directing the Receiver appointed in the suit to pay every month a certain sum of money to the appellant as maintenance pending the disposal of the suit. The appellant is a Hindu widow, and the suit was instituted in order to establish the plaintiff s--1st respondent s--right as the adopted son of the deceased. We think that there is an appeal in this case. Order XLII, Rule 1, Clause (s), of the Code of Civil Procedure 1908, says that an appeal shall lie from an order under Rule 1 of Order XL, and Rule 1 of Order XL deals, among other questions, with cases of orders appointing a Receiver or removing any person from the possession or custody of the property and conferring upon the Receiver all such powers as to the application and disposal of rents and profits. The effect of the order under appeal is to authorize the Receiver to make certain payments to the 1st defendant in the suit. No doubt, it has also the further effect that the Receiver is bound to carry out the order; but we think that this cannot make any difference as far as the present question is concerned. The case is substantially covered by Clause (d) of Rule 1, Order XL. The 1st respond-dent has relied on Keshobati Kurnari v. MacGregor 35 C. 568 : 12 C.W.N. 648 but the facts of that case do not appear sufficiently from the report, and, as far as we can ascertain the facts, they do not appear to be on all fours with the facts of this case.

(2.) ON the merits, we think the Subordinate Judge ought to have allowed maintenance from the date of the appellant s petition that is from the 22nd August 1910. The order of the Subordinate Judge is modified accordingly. There will be no order as to the costs of this appeal.