BISHNU BIJOY SRIMANI Vs. CHANDRA BIJOY SRIMANY

JUDGEMENT

(1.) A preliminary objection has been taken in this appeal that, by reason of the death of one of the respondents and the failure of the appellant to bring his representatives on the record, the whole appeal has abated. Much as I regret the result, the objection, in my view, must be given effect to.

(2.) The facts are simple. It appears that there was a reference to arbitration in a partition suit and an award was made to the effect that a sum of Rs. 32,000./-, of which the appellant had had use and enjoyment, would be paid by him to four persons, each being paid a sum of Rs. 8,000/- and that each of the said four persons would have a charge upon a one-fourth share of that portion of premises No. 115/9, Cornwallis Street which was going to be allotted to the appellant. A decree in terms of that award followed. Thereupon the four persons, to whom I have just referred, adopted a somewhat unusual procedure of combining, in a single application and asking for an order for the sale of the southern Half-portion of the premises charged. It was thus a case of four different persons, holding charges over four different properties, combining in one proceeding and asking the Court for a joint order for the sale of the four properties with a view to the joint dues of all of them being realised. P. B. Mukharji J. passed the order asked for although he appears to have added a condition. The condition was that the appellant was given a year's grace within which he was to pay the amount payable by him to the four persons concerned. After laying down that condition, the-learned Judge directed that if the amount was not paid within a year as directed -- by the amount the learned Judge meant the amount payable to all the four persons -- then the southern half-portion of the premises No. 115/9, Cornwallis Street would be sold by public auction. It appears that the learned Judge refers to southern half-portion of premises No- 115/9, Cornwallis Street as 'the property charged under the decree'. The decree, however, was merely a decree upon the award and the award purported to charge not the southern half of the premises as a single unit, but one-fourth portion of the premises in favour of each one of the four persons.

(3.) Whatever the want of conformity between the decree passed on the award and the order, the fact remains that, rightly or wrongly, the learned Judge passed a joint order in favour of the four applicants, directed the payment of the- entire amount due to the four and further direct ed that in default of the payment of the said amount, the entirety of the southern half-portion of premises No. 115/9, Cornwallis Street would be brought to sale.