CHUNILAL JAMNADAS Vs. MULCHAND HARJIVANDAS

JUDGEMENT

(1.) THIS was a partition suit in which a consent decree for partition was obtained on 8 November 1911 from the First Class Subordinate Judge, Broach. The plaintiff, on the 12 March 1915, took out a Darkhast for partition of the suit property and moveables. Commissioners were appointed, who submitted a report with regard to ornaments. But with regard to a certain house Mr. Hargovandas was appointed Commissioner to effect a division of it. He made a report, but before the report could be given effect to the house was burnt down. The plaintiff then wanted to drop the execution proceedings, but the defendant objected. The Court allowed the plaintiff to drop the execution proceedings. The result would be that those defendants who wished to continue the execution proceedings could not do so without having to issue a fresh Darkhast. We see no reason why the defendants should not have been allowed to continue the Darkhast in order that the suit property might be partitioned. Therefore we allow the appeal and direct the Darkhast to continue at the instance of the defendant. The plaintiff to pay the appellant's costs in both Courts.