TARA PADA RAY Vs. SHYAMA PADA RAY

JUDGEMENT

(1.) The plaintiff-appellant had filed a suit in 1930 for partition of joint family properties belonging to the plaintiff and his brother, defendant No. 1. A preliminary decree was passed by the learned Subordinate Judge, Murshidabad, on the 27-3-1933. Such of the properties as were found to be joint were directed to be partitioned by metes and bounds into two equal shares, one to be allotted to the plaintiff and the other to his brother, defenant No. 1. Defendant No. 1 Shyamapada was held to be liable to render accounts to the plainr tiff Tarapada for a certain specified period. If Shyamapada failed to render accounts within one month from the date of the decree a commissioner was to be appointed to take accounts in the light of the findings and observations contained in the judgment. Against this decree, an appeal (Appeal from Original Decree No. 185 of 1933) was taken to the High Court and a cross-objection was also filed. During the pendency of that appeal, a Receiver was appointed under the direction of this Court. The plaintiff also deposited Rs. 400/- in the Trial Court for meeting the commissioner's costs for partition and accounts. On the 2-1-1935, a joint petition was filed by the two brothers before the Subordinate Judge. No copy of the petition is on the record as the same was destroyed before the present proceedings were restarted in 1949. As far as if ppears from the order sheet maintained in the Lower Court in the aforesaid joint petition it was stated that defendant No. 1 would not proceed with the appeal in the High Court; the Receiver also was to tender resignation. This was done and the resignation was accepted on the 3rd January, 1935. The appeal pending in the High Court was also dismissed on a statement made by the Advocates that the appellant did not want to proceed with the same. The cross objection which had been filed by the respondent was subsequently dismissed for non-prosecution. The records were received back from the High Court on the 10-4-1935, and the plaintiff applied for withdrawal of Rs. 400/- which had been deposited by him after the passing of the preliminary decree for meeting the commissioner's costs. The order for refund was made. No further steps were taken by the parties in the Lower Court except that a joint attempt was made by the parties to compel the Receiver to render accounts for the period he had held office. This matter also was finally disposed of by the learned Subordinate Judge on 8-1-1937.

(2.) On 29-10-1949, more than fourteen years after the withdrawal of the Appeal and the cross objection in the High Court and the filing of joint petitions referred to above, the plaintiff filed an application praying for the passing of a final decree in'the partition suit after effecting partition by metes and bounds and on taking accounts through commissioners in terms of the preliminary decree. Objection was raised on behalf of the defendant Shyamapada that the properties declared to be joint in the preliminary decree passed in 1933 had subsequent to that decree been partitioned and the two brothers were in possession of separate parcels. Such partition had been effected through certain arbitrators appointed by the two brothers near about the time when the resignation of the Receiver was obtained by them and the appeal and the cross-objection had been withdrawn. The claim of the plaintiff Tarapada as decreed in the preliminary decree for accounts against Shyamar pada had also been satisfied by payment of Rs. 8000/- by the latter to the former. Reference will have to be made in greater detail to the circumstances under which the partition had been effected after the passing of the preliminary decree as the real character of the steps taken by the parties at that stage and the legal effect thereof will have to be considered in the present appeal.

(3.) On behalf of the plaintiff Tarapada, it was contended that as there was a pending suit the alleged reference to arbitration, or the subsequent award by the arbitrators were of no legal effect. The preliminary decree for partition and accounts should therefore be made final after necessary enquiries by commissioners to be appointed by the Court.