A court has jurisdiction to order maintenance allowance to a party in a partition suit under Section 151 CPC.

JUDGMENT :

Mohapatra, J. - Defendant No. 1 is the Petitioner before us. The matter arises out of a suit for partition. The Plaintiff has admittedly 8 annas share in the suit properties. The Plaintiff had made an application for appointment of a receiver. On 21-9-50 the receiver matter was dropped by consent of parties, Defendant No. 1 having agreed to pay a sum of Rs. 2000/- towards the maintenance of the Plaintiff. Subsequently the Plaintiff had made further petitions to the Court for enhancing the allowance which were dismissed. The present petition was filed on 29-6-51 for raising maintenance allowance of Rs. 2,000/- to rupees ten thousand and odd (Rs. 10,000 and odd) and for meeting expenses on account of the birth of a child to the Plaintiff for paying fees to the lawyers engaged on behalf of the Plaintiff in the case and also for meeting litigation expenses of the pending partition suit. The learned court below has dismissed the prayer for enhancing the maintenance allowance and has allowed a sum of Rs. 380/- towards the expenses on account of the birth of a new child as against his claim of Rs. 1380/- a sum of Rs. 1000/- towards the fees of the lawyer as against his claim of Rs. 3,575/- and a further sum of Rs. 1000/- towards the litigation expenses. Defendant No. 1 has come up in this revision challenging the amounts allowed by the court below in favour of the Plaintiff.

2. The first point taken up by Mr. B. Mohapatra on behalf of the present Petitioner is that under no provisions of the CPC the Court has power to make an order to either of the parties to make such payments as has been done by it, to other party. The receiver matter having been dropped, he is not a receiver and simply in the role of a party.

3. Mr. Rao contends that the order passed on 21-9-50 with the consent of the parties may virtually be taken to be an order appointing the present Defendant No. 1 as Receiver, and as such the court has perfect jurisdiction to order the Receiver to make payments from time to time as will be necessary in the interest of justice. On perusal of the order we find that Mr. Rao's contention must fail. The order runs thus

Hence on the consent of both sides it is ordered that the receiver matter be dropped and without any prejudice to the question of possession and interest of any of the parties to the said properties Plaintiff would get Rs. 2000/- (two thousand) per annum from the date of this order (today) towards his maintenance to be paid by Defendant No. 1 in three equal instalments....

Now it is dear, therefore, that the receiver matter having been dropped by virtue of the consent of the parties and Defendant No. 1 having been ordered to pay a sum of Rs. 2000/- it cannot be said that the (Defendant No. 1) was appointed a receiver in respect of the suit properties by virtue of that order.

4. But a further contention has been raised by Mr. Rao, invoking the provisions of Section 151, Code of Civil Procedure, that the Court below is perfectly competent to pass such an order as he has done for the ends of justice as required under the said section. It is admitted that the present Plaintiff is entitled to 8 annas share in respent of these properties and also that the Petitioner-Defendant No. 1 is in charge of the management of the entire properties. The suit properties having been valued at Rs. 2 lakhs. We have got a decision of the Madras High Court exactly in all fours reported in Subbaya Maniyagarar v. Kandaswami and Anr. where in the suit was one for partition and a petition also was filed on behalf of the minors to pay maintenance allowance. A point having been raised that there was no provision in the CPC empowering a court to make such order compelling a party to make payments to other party, it was contended that such a petition was not maintainable, the only remedy was to get a receiver appointed, and when there was no receiver the court had no power to make order for payments. It was decided in that case that on the pri