BAI MOOLIBAI Vs. CHUNILAL PITAMBAR

JUDGEMENT

(1.) The plaint in this suit was filed on the 18 January 1909 and the plaintiff is the daughter of one Ambaram Motichand who left property of a very considerable value, and the defendant is the executor of his Will. He is described in the plaint as a law-tout; bat whether or not he is so I do not know. The suit is for the construction of the Will in various particulars and also for an account.

(2.) On the 1 March 1909, Mr. Sethna was appointed Receiver, which I apprehend implies that it would be the duty of the executor to hand over all the property of the deceased in his hands to the Receiver, and also an order was made restaining the defendant from dealing with the property of the deceased. It appears from the proceedings, which I have gone through, that the order for Receiver could not be served upon the defendant until the 19 of March 1909 and on the 20 of March the following notice was written by the plaintiff's attorneys to the defendant's attorneys: Please take notice that on Monday next the 22nd instant or so soon thereafter as Counsel can be heard, Counsel will move on behalf of the plaintiff before the Hon ble Mr. Justice <JGN>Russell</JGN> on the grounds of the affidavit of Shivshanker Dalsukram copy whereof is sent herewith for an Order committing your client to jail for contempt of the Court he having failed to hand over to R.D. Sethna, Esquire, the Receiver appointed herein, the property in his possession of the estate of the late Ambaram Motichand in the plaint herein mentioned and for such other order as the Court may think proper to make for costs. The affidavit in support of notice of motion is sent herewith.

(3.) That notice is dated the 20 of March 1909 and it was served on the defendant's attorneys only and not upon the defendant; and on the 22nd March the notice came on for argument before me, when Mr. Davar for the defendant raised two objections to this notice. The first objection I will deal with first as it is one the least important. This objection is that four clear days at least had not elapsed between the service of the notice of motion and the day named for showing cause as directed by Rule 377 unless the Court or a Judge give special leave to the contrary." The way I read those words is that it is open to the Court or a Judge to give special leave to the contrary at any time. In any emergent matter where a notice of motion has been given for less than four days, the Court if it thinks fit, can give special leave under the rule after such notice has been given; and, therefore, I do not think I ought to hold this objection of Mr. Davarto prevail. In my opinion this is a case in which the Court will be fully justified in not adhering to the strictness of that rule.