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Mohunt Anand Das and ors. Vs. Ram Perkash Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.69
AppellantMohunt Anand Das and ors.
RespondentRam Perkash Das
Excerpt:
appeal - civil procedure cods (act v of 1908), order xl rule 1, sub-rule (1), clause (d) & order xliii, rule 1(s)--receiver, directions to. - .....it is argued on behalf of the respondents that as no appeal is made against the appointment of the receiver no appeal will be against the order made under paragraph (d). a right of appeal is given by order xliii, paragraph (s) which says only that there is appeal against an order under rule 1 of order xl. but if there is appeal against an order made under rule 1, there is, appeal against an order made under any part of it consequently we hold that an appeal lies is this case. as regards the merits of the case the first point we have to consider is, who is to perform the pujahs of the asthal. the order of the lower courts that the receiver shall appoint what is necessary for the daily worship of the idols and make this over to the plaintiff, who will be placed in charge of the management.....
Judgment:

1. This appeal arises out of a suit in which the plaintiff has obtained a decree in his favour declaring that he is entitled to be and that he is to be the Mohunt of an Asthal in succession to defendant No. 1 who is the only defendant we need consider in this matter, and that defendant No. 1 is to get an allowance of Rs. 12.000 a year for, his life. An appeal has been preferred against this decree, and on an application for execution being made it has been ordered that a receiver should be appointed and certain directions have been given as to how the receiver is to deal with the property in question.

2. Against this order the present appeal is lodged, and the first point that is made before us is that no appeal lies. The order, however, is made under Order XL, Rule 1. The appointment of the receiver has been agreed to but certain ancillary orders as regards the disposal of the rents and profits of the property have been made under Rule 1, paragraph (d), and it is argued on behalf of the respondents that as no appeal is made against the appointment of the receiver no appeal will be against the order made under paragraph (d). A right of appeal is given by Order XLIII, paragraph (s) which says only that there is appeal against an order under Rule 1 of Order XL. But if there is appeal against an order made under Rule 1, there is, appeal against an order made under any part of it Consequently we hold that an appeal lies is this case. As regards the merits of the case the first point we have to consider is, who is to perform the pujahs of the Asthal. The order of the lower Courts that the receiver shall appoint what is necessary for the daily worship of the idols and make this over to the plaintiff, who will be placed in charge of the management of the religious and charitable duties. It is suggetted that he is not a fit person to perform this and that a better right to perform it lies with the defendant No. 1, who at all events his been invested with the office of Mohunt which the plaintiff has not. On the other hand the defendant No. 1 long ago abdicated his office and seems to be unfit for the office. A suggestion is made that the receiver will perform the office. It, however, under the circumstances, seems impracticable and we accordingly consider that effect should be given to this part of the decree and we direct that the order of the Court below in this matter shall, stand.

3. In the second place it is ordered that the plaintiff and defendant No. 1 should each be allowed Rs. 200 a month for meeting their private expenses and maintaining their dignity. The position of the plaintiff is not quite that of ordinary Mohunt, and there are difficulties in it which we think make this order not inappropriate as far as he is concerned. As far as the defendant No. 1 is concerned the decree allows him one thousand rupees, whereas this order gives him only Rs. 200 a month. We consider that the order should be amended by the provision of Rs. 200 a month being raised to Rs. 500 a month in the case of defendant No. 1.

4. In the third place Rs. 5,000 have been allowed to the plaintiff out of the Asthal funds in order to meet the expenses of the appeal in which he is the respondent. It is objected that this is an improper order, or at all events if this order is made for his benefit a corresponding order should be made for the benefit of the defendant No. 1. We cannot take this view. The plaintiff is called upon to defend what from a legal point of view is his own property and we consider that, therefore, he should be allowed to use the 1 funds in the receiver's hands for that purpose to a reasonable extent. The order, however, is that the plaintiff is entitled to get Rs. 5,000 out of the Asthal funds. This implies that he is to receive Rs. 5,000 without any check on the way in which he expends it. We vary this by ordering that he shall Receive from time to time such sums up to Rs. 5,000 as may seem to the receiver necessary for the proper conduct of his case in the pending appeal.

5. The result is that the appeal succeeds to the extent we have mentioned. Each party will pay his town costs in this appeal.

6. There has also been a rule granted to shew cause why the relief claimed in the appeal should not be given. It is not now necessary to consider his matter. The rule is discharged. We make no order as to costs.


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