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Mahamed Rasek and ors. Vs. Tahidunnessa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in52Ind.Cas.33
AppellantMahamed Rasek and ors.
RespondentTahidunnessa and ors.
Cases ReferredAmjad Ali v. Ali Hussain Johar
Excerpt:
civil procedure code (act v of 1908), order xxxix, rule 7 - inventory, order directing preparation of, when can be made. - .....as to this court may seem fit.2. the order made by the court below was that an inventory of the moveable properties claimed by the plaintiff be prepared by the nazir after notice to the pleaders of all parties. this order was passed upon an application purporting to have been made under order xxxix, rule 7 (1) (a), which provides that the court may, on the application of any party to a suit and on such terms as it thinks fit, make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit or as to which any question may arise therein.3. the order made by the court below was not for preservation or inspection of any property but for making an inventory of certain moveable properties which are described in the schedule to the plaint......
Judgment:

1. This is a Rule calling on the opposite party to show cause why the order complained of should not be set aside on such terms as to this Court may seem proper, or such other order passed as to this Court may seem fit.

2. The order made by the Court below was that an inventory of the moveable properties claimed by the plaintiff be prepared by the Nazir after notice to the Pleaders of all parties. This Order was passed upon an application purporting to have been made under Order XXXIX, Rule 7 (1) (a), which provides that the Court may, on the application of any party to a suit and on such terms as it thinks fit, make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit or as to which any question may arise therein.

3. The order made by the Court below was not for preservation or inspection of any property but for making an inventory of certain moveable properties which are described in the schedule to the plaint. So far as they are concerned, no inventory is required; and it was not alleged in the application made to the Court below that there were moveable properties other than those described in the plaint.

4. We are referred to the case of Amjad Ali v. Ali Hussain Johar 6 Ind. Cas. 574 : 12 C.L.J. 519 : 15 C.W.N. 353. It was observed in that case: 'We must consequently hold that the right to grant an inspection implies the right to make an inventory, if the Court be satisfied that the preparation of the inventory is essential, for a proper decision of the case.'

5. So far it has not been shown that it was essential in the present case to have an inventory of the moveable properties for a proper decision of the case.

6. The petitioner in her plaint prayed for discovery and for the appointment of a Receiver. It is open to her to apply for discovery or for the appointment of a Receiver, and we are informed that an application for the appointment of a Receiver is actually pending before the lower Court.

7. In all these circumstances the Rule must be made absolute and the order of the Court below set aside.

8. We make no order as to costs.


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