MANICK CHANDRA NANDY Vs. DEBDAS NANDY

JUDGEMENT

(1.) This Appeal by Special Leave granted by this Court is directed against a common judgment and order of the High Court of Calcutta passed on January 28,1981, allowing two applications under S. 115 of the Code of Civil Procedure, 1908, and setting aside the order of the Additional Subordinate Judge, Bankura, whereby the learned Additional Subordinate Judge in an application under Rule 13 of Order IX of the Code of Civil Procedure had set aside an ex parte decree passed against the Appellant and Respondent No. 10.

(2.) The parties are governed by the Dayabhaga School of Hindu law. Gopal Chandra Nandy and Jugal Kishore Nandy were. brothers who both died prior to the litigation out of which this Appeal arises. Respondents No.5 to 9 are the sons of Gopal Chandra. The Appellant and Respondent No. 10 are the sons of the 5th Respondent., Narender Nath. Respondent No. 1 is the son, Respondents Nos. 3 and 4 are the daughters and Respondent No. 2 is the widow of Jugal Kishore. On October 14, 1974, Respondents Nos. 5 to 9 filed a suit for partition in the Court of the Subordinate Judge, Bankura, being Title Suit No. 93 of 1974, against the other Respondents and the Appellant for partition. It was averred in the plaint that the Appellant and Respondent No. 10 were the benamidars of Gopal Chandra and Jugal Kishore in respect of some of the properties mentioned in the suit and they had no right or title therein. The plaint concluded by stating, "For the sake of justice they were made the principal defendants." It would thus appear that the suit was really filed against the Appellant and Respondent No. 10 to obtain a declaration that they had no right, title or interest in certain properties which stood in their names. We are concerned in this Appeal with only one of these properties, namely, Bharat Oil Mill. There was a registered deed of partnership dated July 8, 1957, whereby the said Mill was held in partnership by Respondents Nos. 5 to 9 who were the Plaintiffs in the suit. Respondent No. 1 who was defendant No. 1 in the suit and the Appellant who was defendant No. 5 in the suit. Under the said deed of partnership, the shares of Respondents Nos. 5 to 9 aggregated to 38 per cent in the capital, profits and losses of the said firm of Bharat Oil Mill. The share of Respondent No. 1 was also 38 per cent while the share of the Appellant was 24 per cent. While in one part of the plaint it was stated that the Appellant and Respondent No. 10 had. no right, title or interest in some of the properties, which included the said Mill, in another part of the plaint it was stated that during the lifetime of Gopal Chandra and Jugal Kishore. Respondent No. 2. the wife of Jugal Kishore, and Tarasundri Dasi, the wife of Respondent No. 5 and the Appellant's mother, had acquired certain properties in which Jugal Kishore and Gopal Chandra had no right or title and their successors had no claim to the said properties for they were the personal properties of Respondent No. 2 and the said Tarasundri Dasi.

(3.) On December 16. 1974. Respondents Nos. 5 to 9. who were the Plaintiffs to the saw suit and Respondents Nos. 1to 4, who were Defendants Nos. 1 to 4 in the said suit, filed a petition before the learned Subordinate Judge stating that they had compromised the said suit. The next day the said compromise was taken on record and a date was fixed for Respondents Nos. 5 to 9, namely, the Plaintiffs, to adduce ex parte evidence against the Appellant and Respondent No. 10. On February 6, 1975, a compromise decree was passed by the learned Subordinate Judge as between Respondents Nos. 5 to 9 and 'Respondents Nos. 1 to 4 and an ex parte decree against the Appellant and Respondent No. 10 in terms of the said compromise. Under the terms of the said compromise all the properties in suit were divided amongst Respondents Nos. 1 to 9, the said Mill coming to the share of Respondent No. 1 exclusively. It may be noted that neither the Appellant nor Respondent No. 10 was a party to the said compromise.