9911796707
TMI Blog1939 (12) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... some years ago leaving him surviving a widow Mt. Moharmani Kunwari. Nath Prakash Dhar Misra seems to have been possessed of considerable property, moveable and immovable. His widow died on 23rd August 1935. The respondent, Ghanshyam Dhar Misra, on 28th April 1938, presented a plaint in the Court of the Civil Judge of Gorakhpur claiming the property left by Nath Prakash Dhar Misra on the allegation that he was the reversioner and that the succession had opened to him on 23rd August 1935, when Mt. Moharmani Kunwar died. Ghanshyam Dhar Misra alleged that he was a pauper and was unable to pay the court-fee prescribed by the law on the plaint and prayed for leave to sue as a pauper. On 30th May 1938, Ghanshyam Dhar Misra presented an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary court-fee has been paid by the respondent on his plaint, there is no suit. It has, on the other hand, been argued by the learned Counsel for the respondent that the Court below had jurisdiction to pass the order complained of at the stage at which the proceedings were in the Court below when that order was passed. The question that has been raised is not free from difficulty. The word 'suit' has not been defined in the Code. Order 33, Rule 1 lays down that any suit may be instituted by a pauper subject to the provisions which follow. Rule 2 of that Order directs that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits...and it shall be signed and veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal as a petition for revision for, having heard learned Counsel, we have come to the conclusion that no sufficient grounds have been made out for interference with the order of the Court below, whether we treat the petition of the appellant as an appeal or as a revision. 6. It seems to us that, apart altogether from Order 39 of the Code, the Court below had ample jurisdiction to pass an order providing for the protection and security of the property which is the subject-matter of the litigation. It has been held in this Court that the Civil Procedure Code is not exhaustive: Durga Dihal Das v. Anoraji (1895) 17 All 29 at p. 31. This view has been followed in the other High Courts. The Courts have therefore in many cases, where the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anohar Lal Mahabir Pershad v. Jainarain Babu Lal, AIR (1920) Lah 436 mentioned above: vide Kanshi Ram v. Sharfdin AIR (1923) Lah 144 and New Delhi Theatres Ltd. v. Kailash Chand AIR (1933) Lah 73. The Madras High Court, on the other hand, is inclined to the view that unless the matter comes strictly within the provisions laid down in Order 39 of the Code, a Court has no power to issue an injunction: Varadacharlu v. Narasimha Charlu AIR1926Mad258 and Ayyamperumal Nadar v. Muthuswami Pillai AIR1927Mad687 . They are both decisions of single Judges. It is to be noted however that in both of these cases the question that arose for decision was whether the Court should have granted an injunction restraining the execution of a decree passed by a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the property in respect of which the respondent had filed a plaint and had applied for leave to sue as a pauper, and which in the opinion of the Court below were necessary in the interests of justice. We agree with the view that has been taken in Lahore. In our opinion therefore the Court below had jurisdiction to make the order complained of. 8. On the merits it has been suggested that the order restraining the appellant from receiving the money which the Bettiah Court of Wards pays periodically would operate harshly against him. No materials have however been placed before us to show that the decision of the Court below is wrong. As stated above, the appellant did not even file a written reply to the application of the respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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