Cheruku Ekambaram and Another vs Smt. Ch. Kalpana and Others

T. Ch. Surya Rao, J.—The Revision Petitioner assails the order dt. 16-3-1999 passed in I.A.No. 3098/98 in O.S. No. 464/98 alone although a common order has been passed by the Court below in respect of two other Interlocutory Applications also. I.A.No. 3098/98 was filed by the respondents herein seeking a direction from the Court to Central Bank of India, Monda Market Branch, Secunderabad to permit them to withdraw the accrued interest over the amount of Rupees two lakhs lying in deposit with the said Bank. That application having been considered and passed necessary orders under a common order alongwith two other applications, the present Revision Petition has been filed by the petitioners questioning the common order confining themselves to I.A. No. 3098/98 alone.

The learned Counsel for the petitioners represented while inviting my attention to the schedule appended to the plaint that the suit was filed for partition of the properties covered by the schedule appended to the plaint and that does not include the amount in the deposit with the Central Bank of India, Monda Market Branch, Secunderabad and therefore it is his contention that any order passed by the Court in respect of the property which is not the subject-matter in the suit is illegal.

The learned Counsel for the respondents represented that necessary application would be filed for amending the plaint for inclusion of the said deposits. It is his further contention that under separate agreement between the parties before the elders the amount was kept in fixed deposit with the Bank with a specific understanding of allowing the respondents to withdraw the accrued interest thereon and when the respondents started withdrawing the interest they were not allowed and therefore they had no other go except to approach the Court where the suit for partition was pending.

It is obvious that the amount of Rupees two lakhs which is the subject-matter of deposit before the Central Bank of India, Monda Market Branch, Secunderabad is not covered by the plaint schedule and therefore it is not the subject matter of the suit. The impugned order passed by the learned Chief Judge, City Civil Court, Hyderabad in respect of the property which is not the subject matter of the suit is obviously without jurisdiction. The representation that necessary amendment would be sought for later cannot be countenanced inasmuch as no order can be passed in anticipation of the proposed amendment. The learned Counsel for the respondents at this stage represented that the parties in pursuance of that order have already withdrawn the accrued interest for three months. But the impugned order is to the effect that the Bank should continue to pay the accrued interest until further orders. What has been already withdrawn cannot now be directed to be deposited again. If the respondents are so advised they can include these deposits by means of necessary amendment in the plaint schedule and seek necessary direction in regard thereto. The order passed in this Revision Petition will not come in their way in future.

In the result, the Revision Petition is allowed and the impugned order passed in I.A. No. 3098/98 dt. 16-3-1999 is hereby set aside. No costs.