ARATI PAUL Vs. REGISTRAR O S H C

JUDGEMENT

(1.) THIS appeal is directed against a judgment and order of Mallick, J., dated August 26, 1964, discharging a rule obtained by the appellant under Article 226 of the Constitution. The application in which the Rule Nisi was issued was an offshoot of litigation among the members of the family of one Srish Chandra Paul who died in 1930, leaving him surviving his widow, four daughters and four sons one or whom died during the mother's lifetime. The appellant is the youngest daughter of the said deceased. The widow executed a deed of gift in 1946 in favour of her three sons. She later instituted a suit in this Court being Suit No. 1045 of 1957 for cancellation of the deed of gift and for partition of the estate left by her deceased husband. She died in 1958 after having executed a will whereby she bequeathed her entire estate to the appellant and her youngest son, to the exclusion of her two other sons and the other daughters. The appellant was substituted in place of the deceased widow as the plaintiff in the said suit and she also applied in February, 1960, for grant of Letters of Administration in respect of the will of her deceased mother. THIS application for Letters of Administration was contested by the appellant's two brothers Balai and Konai, and on such contest the testamentary proceeding was marked as contentious cause and was numbered Testamentary Suit No. 12 of 1962.

(2.) THE said testamentary suit as well as the partition suit appeared in the list of Mallick, J. Oral evidence was taken in the testamentary suit for sometime, but before the hearing of the suit was concluded certain developments took place, as will appear from the Minutes of the order made by Mallick, J. on January 4, 1963 set out below: "It is recorded that all the parties consent to this testamentary suit as well as the partition suit being suit No. 1045 of 1957 and all the disputes involved in these two matters be settled and referred to the sole arbitration of the Hon'ble Mr. Justice Mallick and the parties agreed to abide by any decision that will be given and no evidence need be taken except as to what his Lordship might desire and the evidence need not be recorded in any formal manner. Parties agree that His Lordship would have all the summary power including the power to divide and partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition, if necessary, to engage or appoint surveyors and commissioners as his Lordship thinks best. It is recorded that all the parties have referred this matter to the learned Judge in what is known as extra cursumcuriae jurisdiction of this Court. It is further recorded that all parties agree that they will not prefer any appeal from or against the decree or order that may be passed by his Lordship the Hon'ble Mr. Justice Mallick." THEreafter Mallick, J., acting, under the said order dated January 4, 1963 passed an order on April 1, 1963, in the said suit No. 1045 of 1957 adjudicating upon various disputes between the parties. This order was filed in the usual manner and a draft was issued to the parties for settling the same with a view to drawing up of a decree thereon. THE appellant thereupon moved an application under Article 226 of the Constitution for a writ in the nature of mandamus directing the Registrar. Original Side, of this Court to recall, cancel and withdraw the filing of the pretended award dated April 1, 1963, or to forthwith take off the said pretended award from the file and/or the records of the said suit. This application for a rule under Article 226 of the Constitution was rejected on September 5, 1963, by Banerjee J. THEreafter after various proceedings, including an application to the Supreme Court for an injunction restraining the drawing up of the decree, which was granted by the Supreme Court, Sinha and A.K. Mukherjea, JJ. heard the appeal, preferred by the appellant against the order or dismissal passed by Banerjee, J., and they directed the issue of a rule as prayed for by the appellant in her petition under Article 226 of the Constitution. Returns were duly filed by the respondents and the Rule was heard and disposed of by Mallick, J., by his judgment dated August 26, 1964, by which the rule nisi was discharged, the application was dismissed with costs and the Registrar was directed to file the decree forthwith. This appeal is directed against the said order of Mallick, J., discharging the rule.

(3.) RELYING upon the minutes, Mr. Banerjee contended that the pronouncement of Mallick, J., was nothing but an award of an arbitrator, and it should have been filed as such, according to the procedure laid down in the Arbitration Act, 1940. The said pronouncement of Mallick. J., Mr. Banerjee contended, could not and should not be treated as a judgment in the suit and no decree should be drawn upon the said purported judgment as a preliminary decree in the suit.