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Gopi Kishan and ors. Vs. Dan Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All19
AppellantGopi Kishan and ors.
RespondentDan Prasad and anr.
Excerpt:
.....he has in effect appointed the plaintiffs to hold possession as receivers of a portion of the property in suit and the defendants to do the same in respect of another portion. as for the plea that the order complained of should net hava been passed on the application for a temporary injunction, we find that it was as a matter of fact passed upon a consideration of the allegations made in that application and in the reply filed on behalf of the plaintiffs and all the circumstances of the case as a whole. we have heard counsel for the defendants at length on the facts of the case, and it seems to us that the order was a good and equitable order, suited to the circumstances of the case, and we are not, therefore, disposed to interfere with it merely on the ground that formal notice of..........suit for partition pending before him, has seen fit to direct that until the determination of the suit the plaintiffs shall have the control and management of a portion of the property in suit, and the defendants of another portion. the order is attacked before us on the ground that it is ultra vires and that it should not have been passed upon an application for a temporary injunction made by the defendants, which was pending before the district judge when he passed the order under appeal. we think that, although the district judge did not atop to consider precisely under what portion of the code of civil procedure he was acting, he has in effect appointed the plaintiffs to hold possession as receivers of a portion of the property in suit and the defendants to do the same in respect of.....
Judgment:

Ryves and Piggott, JJ.

1. This is an appeal against an order of the District judge of Azamgarh, who, in the course of a suit for partition pending before him, has seen fit to direct that until the determination of the suit the plaintiffs shall have the control and management of a portion of the property in suit, and the defendants of another portion. The order is attacked before us on the ground that it is ultra vires and that it should not have been passed upon an application for a temporary injunction made by the defendants, which was pending before the District Judge when he passed the order under appeal. We think that, although the District Judge did not atop to consider precisely under what portion of the Code of Civil Procedure he was acting, he has in effect appointed the plaintiffs to hold possession as receivers of a portion of the property in suit and the defendants to do the same in respect of another portion. The order itself seems to us not ultra vires, but one covered by the provisions of order XL, Rule 1. It has been argued before us, however, that the effect of this order is to remove the defendants from possession or custody of property from which the plaintiffs had not a present right to remove them. We think this objection does not lie in the mouth of the defendants in view of the attitude taken up by them in their written statement. As for the plea that the order complained of should net hava been passed on the application for a temporary injunction, we find that it was as a matter of fact passed upon a consideration of the allegations made in that application and in the reply filed on behalf of the plaintiffs and all the circumstances of the case as a whole. A court has a right to proceed under order XL, Rule 1, where it appears to it to be just and convenient to do so, and the order is not improper or illegal merely because it was made suo motu. Finally it was contended before us that the order was made without notice to the parties and without giving the defendants in particular an opportunity of showing cause against it. We have heard counsel for the defendants at length on the facts of the case, and it seems to us that the order was a good and equitable order, suited to the circumstances of the case, and we are not, therefore, disposed to interfere with it merely on the ground that formal notice of the intention to take action under order XL was not given to the parties. The result is that this appeal fails and we dismiss it. We leave the parties to bear their own costs of the appeal.


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