JIBAN CHANDRA DUTTA Vs. AHLADINI DEBYA

JUDGEMENT

(1.) This is an application for an order setting aside the order dated 8 June 1929 made by the Subordinate Judge of Bankura in Title, (partition) Suit No. 4 of 1921. The applicants are some of the defendants in that suit and the opposite parties are the plaintiffs in that suit and the rest of the defendants. It is said that the order of 8 June 1929 was made by the learned Judge without jurisdiction and accordingly this application was made under Section 115, Civil P.C.

(2.) It is necessary to consider briefly how it came about that that order was in fact made. It appears that there had been a previous partition suit between these parties and certain properties had been dealt with under orders made in that suit. Then on 8 September 1922 the Subordinate Judge of Bankura made a preliminary decree in the present suit acceding to the plaintiff's claim for partition of certain lands which had not been partitioned in the previous suit; and he further directed that two chaks called respectively Lowa Chak and Bubal Chak should be recorded as tenancies. A commissioner was duly-appointed to give effect to the preliminary decree for partition. But subsequently on the application of the present petitioners, the Subordinate Judge mad(c)1 an order on 29 May 1923 staying, proceedings so far as the partition of these two chaks were concerned. Then, on 29 February 1929, the commissioner having finished his work of partitioning, the properties other than those two chaks, the learned Subordinate Judge-ordered the report to be accepted and the suit finally disposed of. In other words, on 29 February 1924, there was the final decree in the suit. A month later, that is to say, on 27 March 1924, the present petitioners went before the learned Subordinate Judge and obtained from him an order on 10 April 1929 directing the partition of those two chaks to which I have already referred. He apparently held that the previous order with regard to them had merely the effect of temporarily putting in abeyance the partition of those two particular properties. In pursuance of that order the commissioner took up the work of partition of these chaks and on 26 April 1929 he submitted a report. Various objections were taken and in fact several orders Were made. Finally, on 8 June 1929, when the work with regard to these two chaks was complete, further objections were raised by the opposite parties to the present application and the present Subordinate Judge of Bankura. made the order which is now complained of whereby he set aside the order of his predecessor on the ground that such an order was made without jurisdiction. We are asked to say in fact that because this last order was made by a different Judge from the learned Judges who made the previous orders, therefore it was made without jurisdiction. We are unable to accept this contention because we are of opinion that the person occupying for the time the office of the Judge was in fact the only person to whom an application could have been made and who was in the position of dealing with any matter arising out of this partition suit. He was in fact the only person who was competent to do what was necessary in the way of passing a final decree and ultimately bringing all matters in dispute between the parties to a termination. Apart from that aspect of the matter we think also that in any event the order complained of was in the nature of an interlocutory order and not subject to appeal. And not being subject to appeal we come to the conclusion that the learned Judge was the only person who had to deal with the matter; and it is quite clear that this is not a matter which can be dealt with under Section 115, Civil P.C. It follows accordingly that this rule must be discharged with costs, two gold mohurs. Suhrawardy, J.

(3.) I agree.