GANPATRAO WAGLE Vs. GANGADHARRAO

JUDGEMENT

(1.) GRILLE , A.J.C. 1. The plaintiff who is a co-sharer in Mauza Bisoni sued two defendants in respect of village profits: one Yeshwantrao who is the lambardar of the village and the other Gangadharrao, defendant 1, who was alleged to have been his agent. Preliminary issues as to the manner in which the village was held and the respective liability of the defendants to account for the village assets wore framed, and findings were given on 15th April 1930 to the effect that defendant 1, Gangadharrao, was not liable to account in any way and that the plaintiff's claim against him was liable to dismissal, but that defendant 2 was liable for accounts for the previous two years. No preliminary decree was drawn up and the Court then proceeded to determine the amount of defendant 2's liability. The final judgment was delivered and the decree passed on 18th September. Meanwhile on 9th July the plaintiff himself made an application to the Court asking that the name of defendant 1 be struck off in consequence of the finding passed on 15th April. The Court acceded to the request and the plaint was duly corrected.

(2.) THE plaintiff appealed against the final decree and not only disputed the amount which had been awarded him against defendant 2, but also challenged the decision that defendant 1 was in no way liable. The respondent contended that the whole suit was time barred inasmuch as the preliminary finding of 15th April 1930 in a suit which was primarily one for accounts amounted to a preliminary decree although no such decree had actually been passed; and relying on the ruling in Punjaji v. Jairam 1930 Nag 122 the learned District Judge held that defendant-respondent 1's contention was covered by the ruling referred to and also that in any case no appeal lay against defendant 1 as the suit against him had been withdrawn as a result of the application by the plaintiff to have his name struck off. In respect of defendant-respondent 2 it was held that the ruling in Punjaji v. Jairam 1930 Nag 122 had no application as accounts had to be taken consequent on the preliminary finding to ascertain the extent of this defendant's liability, and the suit was within time. The decree was modified as far as the plaintiff's claim against defendant 2 was concerned and the case was remanded for further trial. In second appeal the plaintiff contests the decision that no appeal lay as against defendant 1.