K MAHAMMAD GHOUSE SAHIB Vs. JAMILA BI

JUDGEMENT

(1.) This is an appeal against the order of the Court of the Subordinate Judge of Vellore in I. A. No. 391 of 1946. The appeal was filed on the assumption that the said order was a final decree in O. S. No. 41 of 1943.

(2.) One Kaka Abdul Aziz Sahib died on or about 21st February 1943. The plaintiff is his widow. Defendant 1 is his uterine sister. Defendants 2 to 8 are his father's children by the second wife. Defendant 9 is his sister's son, i.e., the son of defendant 1. The suit was filed for partition and for possession of the plaintiff's one-fourth share in the properties left by her husband and also for rendition of accounts in regard to the business carried on by the deceased. On 25th September 1944, a preliminary decree for partition was passed in the suit. On 22nd April 1946 defendant 1 filed I. A. No. 391 of 1946 for the passing of the final decree. That application was opposed by the plaintiff and the other defendants mainly on the ground that subsequent to preliminary decree the parties to the suit divided all the properties in the presence of panchayatdars and took possession of the properties that fell to their shares. Though no separate petitions were filed, in the counter-affidavit filed by the plaintiff it was prayed that a receiver might be appointed by establishing the aforesaid arrangement and in the counter-affidavit fi ed by defendant 2 the Court was requested to pass suitable orders in the light of the allegations made in the counter. The learned Subordinate Judge held that the award sought to be filed in the Court not having been registered was not admissible in evidence and therefore the adjustment pleaded could not be considered. He appointed a Commissioner to divide the properties. It is represented to us that subsequently no final decree has yet been passed in the suit. Defendant 1 has preferred the above appeal.

(3.) The learned counsel for the respondents raised a preliminary objection to the maintainability of the appeal. He contended that the learned Subordinate Judge had not yet passed a final decree and that no appeal lay against an order appointing a Commissioner to divide the properties. So stated, his position is unassailable. But in our view the appeal can be sustained on the basis that the order of the lower Court was one re using to record a compromise. Though there was no separate petition under Order 23, Rule 8, Civil P. C., in the circumstances of the case relief claimed by the plaintiff and defendant 2 in their counters may reasonably be treated as one made under Order 23, Rule 3, Civil P. C, After stating in the counters that subsequent to the preliminary decree the subject-matter of the suit was compromised in the presence of mediators and that the particulars of the division of the properties were recorded in a document, it was prayed that in the interests of justice suitable orders should be passed by the Court. The learned Judge also treated their counters as asking for such a relief. He refused to give any relief to the counter petitioners as in his view the document embodying the arrangement was inadmissible in evidence and therefore the adjustment pleaded could not be considered. We hold that the order of the Subordinate Judge must be deemed to be one passed under Order 23, Rule 3, Civil P. C. If so an appeal would certainly lie to this Court against the said order.