M K SUBRAMANIA IYER Vs. MUTHULAKSHMIAMMAL

JUDGEMENT

(1.) The prayers in the petition put in by the 1st defendant (2nd respondent) and by his sons (the 3rd and 4th respondents) are as follows: (a) that the petitioners may be placed in possession by the Receiver appointed in the suit of the lands comprised in a list which might be called list A as well as of the ploughing cattle and other agricultural implements relating thereto, and (b) that such joint family debts as had been found to be binding on all the members of the family and not in appeal in the High Court might be ordered to be paid oat of the family funds in the Court deposit.

(2.) This petition is put in under Section 15 of the Charter Act and Section 94 of the Code of Civil Procedure. I do not think Section 15 of the Charter Act has any application. Section 94 of the Civil Procedure Code is very general in its terms. So far as this petition is concerned, it is as follows: "In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed...(e) make such other interlocutory order as may appear to the Court to be just and convenient." The word prescribed is defined in Section 2 Clause 16 as meaning "prescribed by rules." I do not think that the prayers of this petition come under any rules contained in, or passed in accordance with, the Civil Procedure Code. This suit is a suit for partition among three branches of a Hindu family; the suit is now nearly eight years old. The parties have been kept out of the enjoyment of any benefit out of the family property for more than 10 years past. A Receiver has been appointed for the very extensive landed and other properties of the family by the lower Court. Daring the progress of the suit in the lower Court, three lists were put in and accepted by all parties as effecting a fair division of about half of the family lands into three equal shares. Lots were cast and the properties in the A list fell to the share of the 1st defendant and his sons, (the petitioners in this petition), the C list fell to the share of the 6th defendant (5th respondent), and the B list fell to the share of plaintiff and the 5th defendant (the appellant). See paragraph. 40 (a) of the Subordinate Judge s judgment. The properties in the B list (1/3 share) were to be divided into equal halves as between plaintiff and 5th defendant. Fifth defendant is now dead and his two widows are quarrelling about the division of his 1/6 share.

(3.) After this Appeal No. 232 of 1909 was filed in this Court by the deceased, 5th defendant, he seems to have put in an application (Civil Miscellaneous Petition No. 1277 of 1909) in this Court for the continuance of the Receiver appointed by the lower Court till the disposal of the appeal. Notice was given to the parties representing the other two shares and they raised objections to the petition. The late Mr. Justice Krishnaswami Iyer passed the following order: "I do not think that this is a fit case for a Receiver now. There is no dispute about the shares or the bulk of the properties. I do not think the successful parties should be kept out of enjoyment of their shares. Any re adjustment of the shares if the appeal succeeds must necessarily be small. I dismiss the petition." Now this order of Krishnaswami Iyer, J., is clearly binding upon the parties and myself, so far as it goes. Any orders passed by the lower Court in connection with the Receiver s duties or the rights of the parties cannot prevail against the letter or the spirit of this order of Krishnaswami Iyer, J.