YELUKUR VENKATASESHAIAH Vs. YELUKUR PULLIAH CHETTY

JUDGEMENT

(1.) The first defendant is the appellant in this appeal which arises out of the final decree proceedings in O.S. No.1 of 1948 on the file of the Court of the Subordinate Judge, Kurnool. The first plaintiff was the brother of defendants 1 to 5. The first plaintiff having died during the course of the final decree proceedings, his sons and widcw were added as plaintiffs 2 to 6 and they are respondents 1 to 5 in this appeal. The 6th defendant is the undivided son of the first defendant. Defendants 7 to 10 were impleaded as pro forma defendants to the suit on the giound that they had some interest in the plaint mentioned businesses before they were wound up.

(2.) The circumstances which have culminated in this appeal are somewhat peculiar and it is necessary to state them in some detail. On June 16, 1945, the first plaintiff instituted O. S. No. 27 of 1945 on the file of the District Court, Kurnool, (which was subsequently transferred to the Sub-Court and there re-numbered as O. S. No. 1 of 1948) for the issue of a mandatory injunction directing defendants 1 to 6 to produce into Court the account-books relating to the money-lending business conducted by the first defendant and the businesses carried on in the four firms mentioned in the plaint ; for rendition of accounts of the said businesses, and for a decree for his 1/6th share in the ascertained amounts. Defendants 1,3, and 5 resisted the suit inter alia on the grounds that they were not liable to render an account ; that all the family properties had already been partitioned in 1939 ; and that the plaintiff was not entitled to any share in any of the plaint schedule properties. The 6th defendant adopted the contentions of the above defendants. Defendants 2 and 4 practically supported the plaintiff's case and claimed their shares in the suit properties.

(3.) On December 14, 1946, the Court framed issues. Sometime later, on January 6, 1947, certain additional issues were framed. Thereafter the suit made a leisurely progress. Eventually, on January 28, 1949 the trial of the suit commenced with the examination of the plaintiff as P. W. 1 and the first defendant as D.W. 1. The suit was then adjourned to February 3, 1949, as it was reported that the parties were contemplating settlement of the suit. On the last mentioned date, the first plaintiff and defendants 1 to 8 filed a compromise petition under Order 23, rule 3 of the Code of Civil Procedure. According to the terms of the compromise, the parties agreed that accounts relating to the money-lending business and to the four firms mentioned in the plaint should be taken from December 2, 1936, and that R.C. Subbaiah, Advocate, should be appointed Commissioner to look into the accounts and ascertain the assets and liabilities of the money-lending business and the firms. The controversy in the appeal really turns upon the construction of clause 2 of the compromise petition, and we will refer to it later. The compromise petition prayed that the Court should pass a preliminary decree in its terms.