SIDDHESWARI ROY Vs. PROBODH CHANDRA ROY

JUDGEMENT

(1.) This appeal, at the instance of the plaintiffs is directed against the final decree for partition of 'Ka'" 'kha' 'Uma' and 'Cha' schedules of the plaint of the said suit which was instituted on 28th Aug., 1939. On 30th Jan., 1953 a Division Bench of this Court dismissed the appeal preferred by Probodh Chandra Roy, the predecessor-in-interest of the respondent No. 1 series against the preliminary decree for partition of the suit properties passed by the trial court subject to certain clarifications as regards the direction about rendering accounts. The Division Bench, inter-alia, directed that a Commissioner would be appointed on the plaintiff's application and the defendant No. 1 would be liable to account for what he got in and not what he ought to have got with greater skill and diligence in respect of the family properties as they stood on the date of the partition.

(2.) We understand that at the date of passing of the judgment and decree complained of in this appeal, the words of the Accounts Commissioner appointed by the trial court had not been completed. Thus, without waiting for finalisation of accounts matter, the trial court has passed the decree complained of, inter alia, for division by metes and bounds of the aforesaid items of suit properties.

(3.) Mr. Dasgupta, learned advocate for the plaintiff-appellants, has not disputed that in appropriate cases the court is competent to pass more than one decree in a suit for partition. The preliminary decree passed in the present partition suit would have to be worked out, inter-alia, by division among the parties" the immovable properties by metes and bounds and also by taking accounts and, thereafter, passing a final decree. But in the interest of justice and in order to shorten the course of litigation in appropriate cases, the court may make a departure from the ordinary practice of passing one composite final decree for partition by metes and bounds and for accounts. The court may draw up a final decree making allotments of the immovable properties according to shares declared by Preliminary decree and at the same time protect the party or parties who may hereinafter obtain a final decree in the accounts matter by creating charges upon the allotted share or shares of the party or parties liable under the preliminary decree to render accounts. The instant partition suit Was instituted nearly 43 (forty three) years ago and, therefore, both justice and equity demand that the immovable properties of the parties be divided by metes and bounds without waiting for the finalisation of the decree for accounts. In fact, none of the parties are likely to suffer any prejudice or inconvenience by reason of passing such a decree for partition of the 'Ka', 'Kha.' and 'Uma' and 'Cha' schedules properties. In case the properties allotted in the respective shares of the parties be charges for securing decree, if any, which may be hereinafter passed after accounting between the parties are fully completed, none of the parties are likely to be prejudiced. Any other course adopted is likely to postpone the drawing up of the final decree for partition of the aforesaid schedules of properties for an indefinite period of time. We find no reason to deprive the parties from enjoying their separate allotments of the immovable properties according to their shares declared by the preliminary decree.