RADHA KRISHNA DAS Vs. BENI MADHAB DAS

JUDGEMENT

(1.) This is an appeal from an order passed by the Subordinate Judge, Second Court of Midnapur, allowing an application for review. The facts necessary to be stated for the purpose of this appeal are the following: There was a suit for partition which the appellant had instituted as plaintiff against three persons as defendants, No, 1 being one Beni Madhab Das, No. 2 one Basanta Kumar Das and No. 3 one Hemanta Kumar Das. After a preliminary decree was passed in the suit a Commissioner was appointed to make the necessary investigation. In the course of that investigation a solenama was filed before the commissioner. The Commissioner made the partition in accordance with the terms of the solenama and submitted his report. When the report was pending consideration, the plaintiff filed a petition of objection regarding the solenama. The Subordinate Judge sent for the pleader for the defendants, but the latter did not appear. It may be stated here that the three defendants, at that stage of the suit, were being represented by a pleader named Babu Durga Charan Banerji. The case was adjourned to 21 May 1928. On 19 May 1928, defendant 2, Basanta, preferred another objection. Eventually, when the matter was taken up, the plaintiff was ready, but the defendants were absent. This happened on two occasions. On the latter occasion the Subordinate Judge examined the plaintiff and a witness on his behalf and ordered the plaintiff to deposit certain costs in order that the matter might be referred back to the Commissioner. On 29 September 1928, a definite order was made by the Subordinate Judge sending the case back to the Commissioner for reconsideration of his report. Before the Commissioner, as far as may be gathered from the order sheet, none of the defendants appeared and ultimately the Commissioner made certain alterations in the report which he had previously made and resubmitted the same with the result that, on 25 January 1929, the Subordinate Judge acting upon the amended report made a final decree in the suit. On 26 April 1929, this final decree was drawn up and signed by the Subordinate-Judge.

(2.) On 4 May 1929, two applications for review were filed, one on behalf of defendants 1 and 3 and the other on behalf of defendant 2. These applications were dealt with by an order dated 20 November 1929, by which the learned Subordinate Judge allowed the application of defendants 1 and 3 for review and dismissed the application of defendant 2 for that purpose and made certain alterations in the decree which had previously been made by the Court. From this order the present appeal has been preferred on behalf of the plaintiff. The alteration that was made was only with regard to one particular lot of properties, viz., lot No. 64, which on the previous occasion the Commissioner had allotted in a particular way; but on the second occasion-being of opinion that there were tenanted, lands therein, he had made certain modifications in the allotment. The objections which were urged in the applications for review were several in number, but it was only one objection with regard to lot No. 64 that was allowed by the Subordinate Judge and the procedure which the Subordinate Judge adopted was not merely to make an order granting the review, but to review the decision complained of then and there. In other words he made one order at one and the same-time by which he not only granted the review, but also dealt with the case itself and altered the decree.

(3.) In those circumstances, in the appeal which has been preferred before us, two. questions have arisen. Firstly, the question as to whether the decree itself having been altered it is open to the appellant to prefer an appeal from the order granting the review and not to take any steps as regards the decree itself and in the appeal which he has preferred, to contend that the order granting the review should be set aside and further that along with it the alterations made in the decree-should be cancelled leaving the original, decree to stand as it was before the review-was allowed.