Abdul Rahiman Sahib and Another and Bhanu Bibi vs Ganapathi Bhatta

A preliminary objection has been taken to the hearing of these appeals on the ground that no appeal lies. The order which is sought to be set

aside is an order dated July 14, 1899, which purports to have been made in a Miscellaneous Petition presented in the Court of the District Judge

by one Ganapathy Bhatta. The petition appears to ask that the guardians of certam minors, who have been appointed by the Court under the

Guardian and Wards Act should be removed. In the order of July 14th which the guardians now seek to have set aside, the District Judge purports

to issue an injunction u/s 492 of the CPC for the attachment of the estate of the minors and to appoint a receiver to manage the estate. In making

this order the judge seems to have acted under a misconception of his powers u/s 43 of the Guardians and Wards Act. That section provides that

when an order made under Sub-section 1 is disobeyed, the order may be enforced in the same manner as an injunction under Sections 492-and

493 of the Code of Civil Procedure. The section does not confer jurisdiction to issue an injunction, but merely in the case of disobedience to an

order under the Guardians, and Wards Act to proceed in the same manner as if an injunction has been issued u/s 492 of the C.P.C. and

disobeyed. The order appointing a receiver seems to have been made by the Judge as consequential to his order issuing an injunction. Both these

orders were made without jurisdiction. It is contended, however, that the judge must be taken to have acted under the Guardians and Wards Act,

and that, no appeal being provided by that Act in the case of such an order, an appeal does not lie. We do not think that this contention is well-

founded. The learned Judge purported to act u/s 492 of the C.P.C., as regards the issue of an injunction and apparently u/s 503 of the C.P.C., as

regards the appointment of a receiver. Orders made under either of these sections are appealable under the Code of Civil Procedure, The fact that

the District Judge had no power in this case to pass an order under these sections does not bar this Court from treating the order as having been

passed thereunder for the purpose of entertaining an appeal against the order, considering that there is do provision of law under which the Judge

could pass an order attaching the property or appointing a receiver without such order being subject to appeal. This view is supported by the ruling

of the Privy Council in the case reported in Hurrish Chunder v. Kadi Sundari L.R. 10 IndAp P. 4

The preliminary objection is overruled. We set aside the order under appeal on the ground that it was made without jurisdiction, without

prejudice to any proceedings which are being taken under the Guardians and Wards Act, The costs of these appeals will be dealt with by the

District Judge in any order he may make in proceedings under the Guardians and Wards Act with reference to the removal of the present

guardians.