Decided on October 09,1944

V.S.A. Krishna Mudaliar Appellant
V.S.A. Sabapathi Mudaliar Respondents


Alfred Henry Lionel Leach, C.J. - (1.) UPTO the 17th September 1941 the appellant, the respondent and their brother V.S.A. Arumugha Mudaliar, who constituted a joint Hindu family, carried on business in cloth at Chennimalai (Coimbatore), Coimbatore, Kumbakonam, Tiruppur and Jaffna in Ceylon. On that date they divided and by a deed of partition the respondent was allotted the businesses at Chennimalai and at Jaffna. To the appellant fell the business at Tiruppur where the family carried on a ginning factory, and a sum in cash. Arumugha was given the businesses at Coimbatore and Kumbakonam.
(2.) IN 1942 the Government of India passed an Ordinance which established control over the export from India of cotton piecegoods to Ceylon and other countries and piecegoods merchants were informed that applications for licences permitting the export of such goods would be considered only on their furnishing statements of their exports during 1941 -1942. It has been stated in the course of the arguments that the effect of this notification was that only those persons who had exported piecegoods during the period mentioned were allowed to possess export licences. As the respondent had been allotted the Jaffna business he applied for a licence permitting him to export a quota based on the total export business of the family before its partition, and his application was granted. The appellant and Arumugha themselves then applied for licences with the object of exporting piecegoods to Ceylon. Their applications were refused and they were referred by the Controller to a Civil Court for the establishment of their rights. Thereupon the appellant filed O.S. No. 101 of 1944 in the Court of the Subordinate Judge of Coimbatore for a declaration that he was entitled to a one -third share in the export quota based on the business of the family before partition and for an injunction restraining the respondent from obtaining a licence for more than o »e -third of that quota. The respondent was made the first defendant in the suit and Arumugha Mudali the second defendant. This suit was filed on the 14th April 1944 the day before the Subordinate Court was due to close for the summer vacation. Along with the plaint was filed an application (I.A. No. 357 of 1944) asking for an interim injunction restraining the first defendant from obtaining a licence for more than one -third share. This application was granted ex parte on the following day. Notice of the application had not been served on either of the defendants. In fact the second defendant was not made a party to the application for a temporary injunction.
(3.) AS the Subordinate Court was then closed the first defendant was not in a position to appear before the Subordinate Judge and ask him to vacate the interim order under the provisions of Order 39, Rule 4 of the Civil Procedure Code and consequently on the 16th May, 1944, he filed an application on the Original Side of this Court asking for an order (i) transferring the suit and the application for a temporary injunction to this Court, (ii) vacating the interim injunction, (iii) directing the hearing of the application for an interim injunction by this Court and, (iv) then the re -transfer of the suit to the Subordinate Court. The application purported to be made under Clause 13 of the Letters Patent, Order 39, Rule 4 and Section 151 of the Civil Procedure Code. It was heard by Byers; J., who granted all the respondent's prayers. The learned Judge was apparently of the opinion that the deed of partition entitled the respondents to an export quota based oh the business of the family in 1941 -42. This is an appeal from the judgment of the learned Judge. In the first place it came before Mockett and Kuppuswami Ayyar, JJ., who referred it to a Full Bench as they considered it raised a point of practice of the greatest importance, a practice which had been followed since the decision of this Court in Jamna Bai v. Ramanathan Chetti1.;

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