MAULADAD KHAN Vs. FAIZULLAH KHAN

JUDGEMENT

(1.) This is an unusual and a most unfortunate case. It began ten years ago with a suit filed for partnership accounts. The suit was instituted in the Court of the District Judge of Dera Ismail Khan, but was transferred by him to that of the Subordinate Judge, by whom a preliminary decree was passed on 22 October, 1923, declaring the shares of the parties in the partnership and ordering accounts to be taken. There was no appeal against this decree. On 24 March 1924, the Subordinate Judge passed a final decree under which a sum of Rs. 19,991 was found due to the present appellant, Mauladad Khan (who was defendant 1 in the suit) by the other parties, who are the respondents before the Board. Appeals followed to the Judicial Commissioner. He set aside the decree of 24 March 1924, and by his order of 7th May 1925 remanded the suit to the District Judge for re-trial by him, but directed in effect that on the re-trial the respondents would only be entitled to dispute the liability for Rs. 19,991, which had been laid on them by the Subordinate Judge, and would not be entitled to claim that any additional sums were payable to them. This restriction was based on an alleged deficiency in the court-fee paid by them.

(2.) Against this part of the order of 7 May 1925 the respondents filed two separate appeals to His Majesty in Council. These came on for hearing before the Board in February 1929. The judgment of the Board was delivered by Lord Shaw on 15 March following (see Faizullah Khan V/s. Mauladad Khan, AIR 1929 PC 147 , and the advice tendered to His Majesty was that the order of the Judicial Commissioner of 7 May, 1925, should be set aside and the case remanded to the Court of the Subordinate Judge for fresh trial and decision on the merits. An Order in Council was duly drawn up to this effect and dated 1 March 1929.

(3.) In the meantime however the case had gone on in India as if no such appeal were pending. The District Judge acted on the remand order of the Judicial Commissioner, accounts were taken by Commissioners, their report was considered by the District Judge, and on 14th January 1927 he delivered a judgment finding considerable sums due from Mauladad to the various respondents. The judgment was stated to be "Contingent upon the reversal of the Judicial Commissioner's order dated 7 May 1925, by the Privy Council."