D HAJEE ABDULLA SAHIB Vs. SHAFFEE MUHAMMAD SAHIB

JUDGEMENT

(1.) In a suit filed by the appellant on the Original Side of this Court in which he asked for a decree for the dissolution of an alleged partnership and the taking of accounts, the defendants (the respondents) preferred a counterclaim. They denied that the plaintiff was a member of the partnership. They averred that he had acted as their commission agent and was indebted to them in this connection in the sum of Rs. 1,84,542-15-7. Consequently they asked for an account. The plaintiff's claim to be a partner was rejected by the learned trial Judge (Chandrasekhara Ayyar, J.) and his decision has been confirmed by this Bench on appeal. The learned Judge granted the respondents claim for an account and consequently passed a preliminary decree for the taking of the accounts. After this had been done, the respondents decided that they would not proceed with their counter- claim and accordingly they asked the Court to dismiss it. The appellant objected on the ground that the passing of the preliminary decree for accounts entitled him to insist on the accounts being taken. Chandrasekhara Aiyar, J., was of the opinion that the respondents could withdraw their counter-claim at any stage and consequently he dismissed it with costs. The plaintiff has appealed against the decree dismissing the counter-claim.

(2.) It is not to be doubted that the respondents had the right to withdraw their counter-claim at any stage before the passing of the preliminary decree. The question is whether that right continued once the Court had decreed the taking of the accounts. On a consideration of the authorities we consider that the learned Judge erred in holding that the respondents were entitled to withdraw their counterclaim after the passing of the preliminary decree.

(3.) In Anna V/s. Somasundara (1930) 62 M.L.J. 45 : I.L.R. 54 Mad. 654 a Bench of this Court held that if the taking of the accounts in a suit for accounts resulted in an amount being found due to the defendant he was entitled to have a decree passed in his favour for the sum found due. This decision was based on the judgment of the Privy Council in Hurrinath Rai V/s. Krishna Kumar Bakshi (1930) 62 M.L.J. 45 : I.L.R. 54 Mad. 654. In Lachmi Narain Marwari V/s. Balmakund Marwari 1924) 47 M.L.J. 441 :L.R. 51 I.A. 321: I.L.R. 4 Pat. 61 (P.C), Lord Phillimore, in delivering the judgment of the Privy Council, observed that after decree it was open to any party to a suit, to whose interest it was that further proceedings should be taken, to initiate the supplementary proceedings; but in the ordinary case it was the plaintiff who moved. Later in the judgment, Lord Phillimore said: After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurrred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree any party can (as already stated) apply to have it enforced." That suit was one for partition.