UMAPATI CHOUDHURI Vs. SUBODH CHANDRA CHOUDHURI

JUDGEMENT

(1.) The petitioners instituted a suit which has been numbered as Suit No. 12 of 1950 for partition of properties belonging originally to four brothers, Nandalal, Amritalal, Motilal and Mohitlal. The petitioners are the sons and legal representatives of Panchkori, one of the six sons of Amritalal. It is not disputed that Panchkori did acquire by inheritance an interest in the joint properties. Sometime before 1932, he lost that interest and that interest passed to another son Amritalal, Lalit. The petitioners have brought the suit on the averment that thereafter they have reacquired an interest in the properties and found their case on deeds of transfer from Lalit. They have also asked for a permanent injunction restraining the defendants from executing the decree passed in an earlier suit for partition instituted by Subodh who is the son of Mohitlal. In this earlier suit which was numbered 39 of 1945 the present plaintiffs were not made parties. It is on that ground that the plaintiffs urged that the previous partition decree is ineffective and that its execution should be prevented. A preliminary decree was passed in that earlier suit on 15-11-1946. A commissioner was appointed on 18-2-1948 for giving effect to the preliminary decree. On 10-9-1948 before the Commissioner had completed' his labours, the present petitioners filed an application before the Commissioner in which they claimed an interest in the properties on the basis of the deeds of transfer from Lalit which have been mentioned above and prayed that an allotment may be made in their favour. The Commissioner rightly put up this application before the court. The application was however dismissed on 14-9-1948, not in the view that the story of transfer was false or doubtful but in the view that as it was not the case of some of the defendants in that suit that the proposed added defendants had got interest by succession or assignment since the institution of the suit, the prayer for adding them could not be allowed. It is not disputed before us that the order passed by the learned Judge was based on a misappreciation of the law. The present plaintiffs however took no further steps in the matter till they filed the suit on 14-3-1950. Before that date much progress had been made in the earlier suit. The Commissioner filed his report on 16-9-1948 and the final decree was passed on 21-1-1950. After the present suit had been filed on 14-1-1950, the stamps for the final decree were put in by the plaintiffs on 15-3-1950.

(2.) On 16-3-1950, the plaintiffs, i.e., the present petitioners, filed their application for temporary injunction restraining the opposite party Subodh from executing the decree in the partition suit. The application was rejected by the learned Subordinate Judge on 27-9-1950. An appeal against this order of rejection was dismissed by the learned District Judge on 31-8-1951. The opposite party filed his application for execution of the final decree in that earlier partition suit on 11-9-1951. Writ was issued on 14-9-1951 and in his report of 17-9-1951 the Commissioner stated that he had "given delivery of possession of the sadar rooms and the land adjoining the said sadar room, kitchen, store room etc., to the decree-holder, subject to the right of the judgment-debtors to use the existing passage used by them for the ingress and egress of their house till the common passage is formed according to the decree by breaking open the portion of the wall just to the south of the stair case........." He mentioned further in the report that as regards the other properties possession would be given gradually.

(3.) It is obvious that to the extent the final decree in favour of Subodh has already been. executed, the present Rule is infructuous. Clearly, however, the decree has been executed only in part and as regards the part which has not been executed, it is necessary for us to consider whether we shall interfere with the decision of the courts below that the plaintiffs are not entitled to any order restraining Subodh from executing the remaining portion.