GOPI NATH Vs. GOPALJI

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Gaya by which he allowed the respondent to execute what he considered to be a decree of the Court in a partition suit. The appellant argues first that the supposed decree or order is not capable of execution at all inasmuch as it does not state or specify the parties by whom the order is to be carried out; secondly, whoever is bound by the supposed order to carry out the terms of the order it certainly includes persons other than himself; thirdly, that the whole of the obligations, if any, contained in the supposed order and binding on him and the other parties on whom it was made binding must be deemed to have been discharged having regard to the history of the transactions between the parties; and fourthly, on the ground that the provisions of Order 21, Rule 16, proviso 2, Civil P.C., apply to this particular case.

(2.) Having regard to the position of affairs on the first three points which he has urged, it is unnecessary for us to consider the fourth. The facts may shortly be stated as follows: One Gopalji who is the respondent in this case began a suit for partition of the property of the family of which he was a member. He made the other members of the family parties to that suit, but inasmuch as he alleged that the karta was wasting the property he asked for an interim order for the payment to him of something by way of maintenance and the learned Subordinate Judge after discussion of the value of the estate made an order for the interim payment to him of Rs. 160.

(3.) The order was passed on 26 April 1930 and the operative terms are, after considering the status of the family, the relative status of this particular member of the family and the value of the estate: I am of opinion that not less than Rs. 160 should be the monthly stipen dependents lite to cover the maintenance charges of the plaintiff's family. After that order the suit went on and ultimately there was a compromise petition. By this compromise petition the question of the precise shares of each member of the family in the estate was left to the decision of the Court. It was also provided that when that ascertainment of shares had been made that certain named arbitrators should proceed to allot the property by metes and bounds to the shareholders in such proportions as should have been decided by the Court.