ORISSA SUPPLY AGENCY Vs. MIRZA JALILUDIN

JUDGEMENT

(1.) This appeal under Order XLIII, Rule 1 (d) of Civil P. C. is directed against the order dated 24-1-1979 made by the learned Second Additional Subordinate Judge of Cuttack refusing to vacate the ex parte decree dated 13-2-1978 made in Money Suit No. 151 of 1971.

(2.) Orissa Supply Agency was a registered partnership firm of which plaintiff and defendants 2, 3 and 4 were partners. The money suit was filed by Mirza Jaliludin, one of the partners, for a declaration that the firm stood dissolved with effect from 1-4-1968 upon plaintiff's retirement and plaintiff was entitled to his share in the firm with interest at six per cent per annum thereupon. The suit was decreed on contest on 21-6-1974. It was declared that the plaintiff and defendants 2, 3 and 4 had each one-fourth share in the firm and it had been dissolved with effect from 1-4-1968 when plaintiff retired from the partnership firm. Defendants were directed to render accounts till dissolution and the claim of the plaintiff was allowed to be determined by a pleader commissioner on the basis of examination of the accounts. At the instance of the plaintiff, a pleader commissioner was appointed on 20th of Sept. 1974 and he submitted his report on 4-8-1975. On 20th of April, 1976, the pleader commissioner was examined and cross-examined and his report was marked as Ext. 1. The commissioner's report was accepted as a part of the evidence for the final decree proceeding. Leave was granted to have two money receipts examined by a handwriting expert at defendants' cost. On 8-9-1976, the handwriting expert's report was received in Court. The final decree proceeding suffered several adjournments at the instance of the parties as also on account of pre-occupation of the Court. On 27-1-1978, the Court made the following order :--

(3.) In view of the submissions advanced during hearing of the appeal at the Bar, three questions arise for consideration : -