S.P. Sinha, J

1. The defendants are the petitioners in both these applications. This order will govern both of them. Civil Revision No. 67 of 1973 is directed against an order dated the 7th of June, 1972 by which the plaintiff has been granted maintenance. Civil Revision No. 974 of 1972 is directed against an order dated the 11th of August, 1972 by which the quantum of maintenance has been determined. According to the learned counsel for the defendants the order granting maintenance was without jurisdiction and the order determining the quantum thereof was much more so.

2. The relevant facts leading to the filing of these petitions are as follows:–

The plaintiff opposite party claiming to be the widow of one of the coparceners had filed a suit for partition of the family estate which suit pas been registered as Title Suit No. 35 of 1967 of the court of the Subordinate Judge II, Patna and is pending disposal. On the 7th of June, 1968 the plaintiff filed an application for appointment of a receiver and another application for grant of ad-interim maintenance. Both these petitions were disposed of by an order dated the 28th of January, 1970 with regard to the petition for maintenance, the learned Subordinate Judge observed:–

"No direction can either be given in this suit at this stage for making provision of her maintenance."

The prayer for grant of maintenance was renewed by the plaintiff by an application dated the 2nd of May, 1972. This time by the impugned order dated the 7th of June, 1972, the learned Subordinate Judge held–

"The documents referred to above therefore go to show that the plaintiff may be taken for the present purpose to be a member of the family and not as stranger as claimed on behalf of the defendants."

Having so held the learned Subordinate Judge further held that the plaintiff was entitled to maintenance. In this order the quantum of maintenance was not fixed, but all the same it was observed that the quantum shall be considered in presence of the lawyers for the parties at later date. On the 11th of August, 1972 the quantum of maintenance was fixed at Rs. 120/-per month.

3. Mr. Ghose appearing for the defendant petitioners has assailed the order dated the 7th of June, 1972 on two grounds: –

(1) That the order was hit by the principles of res judicata.

(2) The court below had no jurisdiction to grant maintenance in a suit for partition.

Mr. Ghose has assailed the other order, namely, the order determining the quantum of maintenance on the ground that it had been fixed without any basis.

4. Replying to the contentions raised on behalf of the petitioners, it has been urged that the principle of res judicata has no application to the order dated the 7th of June, 1972, because the previous order dated the 28th of January, 1970 did not finally determine anything, much less about the status of the plaintiff to demand maintenance. It was further submitted that the court below had the jurisdiction to grant ad-interim maintenance. It could do so under its inherent powers to do justice. So far as the determil1ation of quantum was concerned, learned counsel for the opposite party submitted that the court having exercised its judicial discretion in fixing the quantum, there was no reason to interfere with it. Thus, according to the learned counsel for the opposite party none of these petitions had any merit which should, therefore, be dismissed.

5. Of the two contentions raised by Mr. Ghose concerning Civil Revision No. 67 of 1973, in my opinion, the contention relating to the principles of res-judicata hitting the impugned order in question, is not valid. By the earlier order dated the 28ch of January, 1970 all that the learned Subordinate Judge had held-concerning the grant of maintenance was that he had rejected the petition at that stage. Obviously, therefore he did not determine the rights of the parties concerning the grant or otherwise of maintenance. Since the right to claim maintenance was not finally determine