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TMI Blog1951 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... mal, one of the sons of Saradindu. They had proceeded to execute the decree against Amal had prayed for the sale of certain properties which had been inherited by Amal from Saradindu. Claims were filed by the wife the daughter of Amal as also by the brother's son Amal contending that the properties which were about to be put up to sale did not belong to Amal. The claims as made were dismissed. No suit, it is stated, has yet been filed under Order XXI, Rule 63, Civil P. C. Near about the time when the claim petitions were dismissed, an application was filed by the wife the daughter of Amal for the grant of letters of administration of a will alleged to have been left by Saradindu. Immediately after this application had been filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in this connection 'Abdul Alim v. Badaruddin Ahmed' 28 C. W. N. 295 'Hukum Chand v. Kamalanand Singh' 33 Cal 927 4. If in the present case the application for stay of the proceedings pending before the executing court had been made before that Court, there could not have been any question as to the jurisdiction of that court to entertain that application or to deal with it on the merits. But as indicated already, the application was not made in the court where the proceedings in execution were pending but in the probate court. 5. The powers of the probate court for the protection of the property which is the subject matter of a testamentary disposition are now regulated by specific provisions contained in the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound enunciated in a series of decisions. Vide 'Mungle Chand v. Go-pal Ram' 34 Cal. 101; 'Jumna Das v. Haracharan Das' 38 Cal. 405; 'Naskarpara Jute Mills Co. v. Nirmal Kumar Jain' I. L. R. (1941) Cal. 373; in the Goods of Mrs. Lilian Singh, AIR1943Cal93 . So far as the mofussil courts are concerned, such inherent power was exercised to stay proceedings pursuant to its own order in view of an intended appeal. Vide 'Brij Coomaree v. Ram Rik Das, 5 C. W. N. 781; 'Nandakishore v. Ram Golam' 40 Cal 955 . The exercise of an inherent power no doubt, may if permissible be widened to aid administration of justice not to restrict it unduly so as to cause needless hardship to litigants, leading to a possible fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as contemplated under Order XXXIX, Rule 1, Civil P. C., the only question in controversy being as to who is to represent the estate of a deceased person, there being no question of title involved in those proceedings, the court of probate is not thereby wholly incompetent to grant a temporary injunction even in extreme cases; such order of injunction is to be issued only in aid of in furtherance of the purpose for which a grant is made by a probate court. It is, therefore, open to the probate court not only to appoint an administrator pendente lite, but also to issue an order of injunction, temporary in character, pending the appointment of an administrator pendente lite. If such powers are exercised in probate cases by a probate cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendente lite. There is, however, another point which must not be overlooked. It is to be shown that the property which is the subject-matter of the testamentary disposition is going to be affected or dealt with, either in the course of proceedings in another court, or by the personal acts of another individual. 9. The relevant question in this connection, therefore, will be whether the property which was going to be sold in the present case in the execution proceedings pending before the learned Subordinate Judge was the property which was the subject-matter of the will for which an application for the grant of letters of administration had been made. On this point, there is a dispute between the parties as to what is contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the learned Dist. J. staying proceedings in execution must be set aside, but the petition on which that order was passed will be treated as an application for the appointment of an administrator pendente lite the court will proceed to deal with the application on the merits, keeping in view the principles indicated above. It will be open to the opposite parties to file an additional petition giving further particulars in support of the prayer for the appointment of an administrator pendente lite if they are so advised. The D. Hs. who are the petitioners before this Court will also be allowed to file objections to the same be given a hearing. 11. This Rule is accordingly made absolute. The learned Dist. J. is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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