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Nallasivam Chettiar, Minor by Next Friend, Subbiah Chettiar Vs. Avudayamma, Minor by Father and Guardian, Ekambaram Chetti - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported inAIR1958Mad462; (1958)1MLJ181
AppellantNallasivam Chettiar, Minor by Next Friend, Subbiah Chettiar
RespondentAvudayamma, Minor by Father and Guardian, Ekambaram Chetti
Cases ReferredAtma Ram v. Beni Prasad
Excerpt:
- - 1. an interesting point is raised in this civil miscellaneous petition......way of appeal.4. but this is easily met up by the fact that between the preliminary decree and the final decree the lower court can pass many interim final decrees and this position is made clear by the decisions reported in bharat indu. v. yakub hasan ilr(1913) all. 159, and basavayya v. guruvayya : air1952mad61 . therefore when the lower court adjudicates upon this matter it can be treated as an interim final decree it will always be open to the plaintiff to file an appeal against that interim final decree if so advised, or it will be open to the trial court to take this up as a part of the final decree itself in case there is no urgency and in that case an appeal can be filed against the final decree itself. i need not point out that the marriage of the fourth defendant should not be.....
Judgment:
ORDER

Ramaswami, J.

1. An interesting point is raised in this Civil Miscellaneous Petition.

2. There was a Second Appeal in this Court disposed of in S.A. No. 1056 of 1954. In this Second Appeal there was a C.M.P--C.M.P. No. 9546 of 1956 in which directions were asked for provision being made for the marriage expenses of the fourth defendant. This petition was disposed of by Ramaswami Gounder, J., by directing the fourth defendant to approach the lower Court for orders as to determining the quantum of the marriage expenses as the learned Judge had no sufficient materials before him to decide the matter. It may be noted here that there was no dispute that the marriage expenses of the fourth defendant constituted a legitimate item of expenditure to be incurred by the joint family. This order of Ramaswami Gounder, J., was on 7th January, 1957 and the aggrieved party thereafter filed I.A. No. 231 of 1957 on 25th February, 1957 in the trial Court. It is now pending and even before this application is adjudicated the plaintiff has come to this Court stating that in as much as the main Second Appeal has been disposed of, by me, the C.M.P. relating to the provision of marriage expenses of the fourth defendant got merged in the Second Appeal and hence the lower Court was not competent to entertain any further application.

3. I am unable to see any force in this contention. The enquiry in regard to the provision of marriage expenses of the fourth defendant is being held in pursuance of the directions of Ramaswami Gounder, J., in the Civil Miscellaneous Petition mentioned above and the only grievance which can be felt by the plaintiff is that he should not be left without any remedy by way of appeal.

4. But this is easily met up by the fact that between the preliminary decree and the final decree the lower Court can pass many interim final decrees and this position is made clear by the decisions reported in Bharat Indu. v. Yakub Hasan ILR(1913) All. 159, and Basavayya v. Guruvayya : AIR1952Mad61 . Therefore when the lower Court adjudicates upon this matter it can be treated as an interim final decree it will always be open to the plaintiff to file an appeal against that interim final decree if so advised, or it will be open to the trial Court to take this up as a part of the final decree itself in case there is no urgency and in that case an appeal can be filed against the final decree itself. I need not point out that the marriage of the fourth defendant should not be made dependent upon the passing of final interim decree which may take time covering several extraneous matters. In any event the present petitioner will not be left without any remedy by way of appeal if he is really prejudiced by the orders passed in this interlocutory application.

5. I may incidentally point out that the powers under Section 151 of the Civil Procedure Code cannot be invoked to file C.M.Ps. of this nature here when the Second Appeal itself has been disposed of. This point is concluded by authority viz., Mukund Lal v. Gaya Prasad ILR(1935) All. 977 following Atma Ram v. Beni Prasad ILR(1934) All. 907. This Civil Miscellaneous Petition has got to be dismissed and is hereby dismissed.

6. Mr. K.R. Rama Iyer, learned Counsel points out that the marriage of his client (4th defendant) is imminent and that there should be no further delay in the disposal of I.A. No. 231 of 1957. I endorse this.

7. I must express my acknowledgment to Mr. A. Balasubramaniam whom at an earlier stage I appointed as amicus curiae to argue the matter and who has placed all the relevant authorities before me for the proper disposal of this application.


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