BEPIN BEHARY SHAW Vs. BONBEHARY SHAW

JUDGEMENT

(1.) There are two applications before the Court, one by the defendant Pulin Behary Shaw and Bijoy Kristo Shaw for an order that the Report of the Commissioner of Partition appointed herein be confirmed subject to a slight variation as to costs. The other application is an application by the plaintiff that the Report of the Commissioner may be varied or modified and be remitted for re-consideration.

(2.) The defendants at the outset have taken the objection that the Report cannot now be varied because it has been confirmed by the effluxion of time, and they refer to Chap. XXVI, Rule 89, which is in the following words: An application to discharge or vary a certificate or report shall be made by motion upon notice to be given within 14 days from the date of the filing thereof or within such further time as may be obtained for that purpose but in that case the notice shall mention that it has bean given with the leave of the Court. An application for further time may be made by petition in Chambers without notice.

(3.) The contention on behalf of the defendants is that an application to discharge or vary a certificate or report must be made by motion within 14 days upon notice. They refer in support of their contention to two cases which have been decided in this Court on the old Rule 565, which is in the same terms as the present rule. The first case is that of Lutchmee Narain v. Byjanauth Lahia 24 C 437, decision of Mr. Justice Sale. In that case the Report was dated February 1, 1896, and was filed on July 8, 1896. On July 17, the defendant obtained three weeks further time to file exceptions to the Report Exceptions were filed on August 10, i. e., within the extended period, but no further steps were taken till March 15. No notice of motion was given by the defendants to discharge or vary the Report.