BALMATI KUARI Vs. JAGBANDHAN NATH TEWARY

JUDGEMENT

(1.) This rule is directed against an order of the Subordinate Judge of Ranchi dated 15th July 1949 setting aside a final decree passed ex parts in exercise of his inherent jurisdiction.

(2.) On 18th August 1942 applicant Mt. Balmati Kumari brought the suit asking for partition of 1/5th share of certain immovable properties. The suit was dismissed by the trial Judge and an appeal was preferred before the High Court. On 1st March 1946 the parties agreed to a compromise and the High Court disposed of the appeal informs thereof. According to the compromise (1) the case was to be remitted to the learned Subordinate Judge for ascertaining the net income of the family properties regarding which the suit was brought, (2) Mt. Balmati Kuer shall be entitled to l/8th of the total net income of the family properties as ascertained by the learned Subordinate Judge in satisfaction of her claim in the suit and in lieu of maintenance, (9) the above share of the income shall be paid by the respondent annually to the appellant and shall be a charge on the properties.

(3.) After the remand the learned Subordinate Judge issued a writ to a pleader-commissioner who submitted his report on 28th January 1948. As no objections were filed the Subordinate Judge accepted the report and ordered that a final decree should be prepared. On 30th July 1948 Rameshwar Pandey, curator of defendant 4, applied to the Court asking that the final decree should be set aside on the ground that defendant 1 was not properly represented before the commissioner, that the latter calculated mesne profits for six years in direct contravention of the consent order passed by the High Court and that there had been an abuse of the process of the Court. After hearing the parties the learned Subordinate Judge allowed the application and set aside the final decree under Section 151, Civil P. C. on the ground that there had been a gross mistake on the part of the pleader-commissioner and there had occurred miscarriage of justice.