RAGHUNANDAN SAHU Vs. BADRI PANDEY

JUDGEMENT

(1.) This application by the plaintiffs arises out of a partition suit. The question for consideration is whether after a preliminary decree for partition has been passed, the Court is justified in refusing to vacate the final order which was passed in the absence of a defendant, who had died since the date of the preliminary decree. The facts are these. The plaintiffs instituted a partition Suit No. 13 of 1939 against a number of defendants including Ramratan Sahu, defendant 4, and Jangal Sahu, defendant 5. The preliminary decree was passed on 2 April, 1940 and a pleader commissioner was appointed to effect partition and make allotments. As no objection was made by any of the parties to the report of the commis-sioner, the Court passed a final decree on 24 June 1941. Subsequently defendant 4, Ramratan Sahu, appeared and filed an objection that the final decree should be set aside, and by. an order dated 20 June 1942 the final decree was vacated as the Court was satisfied that defendant 4 had not been given sufficient opportunity to file his objections. During the hearing of that miscellaneous case, it transpired that Jangal Sahu, defendant 5, the brother of Ramratan Sahu, had died after the passing of the preliminary decree, but no steps had been taken to bring his heirs upon the record. The Court therefore when vacating the final decree directed that the heirs of deceased defendant 5, should be brought on the record by 1 July 1942. As no steps were taken on that date for substituting the heirs of Jangal Sahu, the Court ordered that "the suit would abate as regards the deceased defendant 5, Jangal Sahu," and the suit was adjourned to 20 July 1942 for filing objections, if any, against the allotment report of the commissioner. Defendant 4, who had been given an opportunity, did not file any objections, but the plaintiffs filed a petition on 10 July 1942 that the abatement order may be vacated. On the date fixed for hearing of this application, defendant 4 filed ah objection that the plaintiff's application to vacate the abatement order should be refused, but he never filed any objection to the allotment report. The plaintiff owing to the disturbed state of the railway traffic did not appear and take further steps. The case was adjourned, and on 26 September 1942 as neither of the parties appeared, the Court rejected the plaintiff's application for vacating the abatement order and passed a final decree, and adjourned the case to 6 October for taking further steps by the parties. The Court discovered that on 26 September 1942, defendant 4 by adopting a clandestine method put in an objection petition and got it sealed with the Court's seal, with the result that it did not entertain the objections of defendant 4. A subsequent application by defendant i to consider his objections was also rejected. On 8 October 1942, the plaintiff filed another application under Section 5, Limitation Act, in which he prayed again that the order of the abatement passed on 1 July 1942, should be set aside. The Subordinate Judge came to the conclusion that the plaintiff had sufficient time to apply for substitution within the statutory period of 90 days and therefore refused to give any relief under Section 5, Limitation Act. As he had already rejected the petition of the plaintiff for setting aside the abatement, he maintained that order. Defendant 4 filed another application on 13 February 1943, contending that unless the final decree was set aside, there could be no substitution of the heirs of the deceased defendant and therefore prayed that the final decree should be set aside and he should be given an opportunity to file an objection against the allotment report, The Court, however, was of the opinion that the defendant and his pleader had been negligent in prosecuting their claims from the very beginning and they had adopted all sorts of practice to get relief, but the Court was not prepared to condone their dilatory and negligent conduct. Accordingly he refused to give relief either to the plaintiff or defendant 4 with the result that the Court confirmed his previous order by which he had held that the suit abated against the heirs of deceased defendant 5 and maintained the final decree which he had passed on 26 September 1942. Hence the application in revision to this Court on behalf of the plaintiff.

(2.) It is contended on behalf of the petitioner that after the preliminary decree had been passed the Court had no jurisdiction to hold that the suit had abated against the heirs of deceased defendant 5 and that the whole proceedings after the preliminary decree should be set aside as being null and void, and the plaintiff should fee allowed to take steps to have a proper final decree passed in the presence of all the parties. On the other hand, Mr. B. C. De appearing on behalf of the opposite party contends that the order of the Court was perfectly valid and justified and that it was the plaintiff's own fault that he did not take proper steps within the time allowed. A number of cases were cited by both sides in support of their respective contentions. In my opinion the matter has been conclusively decided by the decision 6f their Lordships in Lachmi Narain V/s. Balmakund A. I. R. 1924 P. C. 198. It was pointed out by Lord Philli-more, who delivered the judgment of their Lordships, that after a preliminary partition decree has been made in a suit, the suit cannot be dismissed later on upon the plaintiff failing to appear on the date appointed by the Subordinate Judge for the matter to be proceeded with unless the decree is reversed, and that it would have been a proper order if the Subordinate Judge in these circumstances had made an order adjourning the proceedings sine die with liberty to the plaintiff to restore the suit to the list on payment of all costs and court-fees, if any, thrown away. In Ranjit Sahi V/s. Maulavi Qasim A. I. R. 1923 Pat. 342 in a partition suit the Subordinate Judge had passed a preliminary decree for partition and directed the commissioner to partition the joint lands, but finding that the commissioner had partitioned the lands which were different from the joint lands, dismissed the suit. It was held by a Division Bench of this Court that it was not open to the Court to dismiss the suit.

(3.) In Lachhmi Narayan Tewari V/s. Ramsaran Tewari A. I. R. 1925 Pat. 433 after a preliminary decree for partition had been passed the plaintiff did not deposit the commissioner's fees, and on the date fixed his pleader said he had no further instructions. Thereupon the Court in the view that unless a commission was issued the final decree for partition could not be made, dismissed the suit for non- prosecution. It was held by a Division Bench of this Court that the Court had no jurisdiction to dismiss the suit after the preliminary decree had been passed. Ross J. who delivered the judgment of the Bench, referred to the Privy Council decision in Lachmi Narain V/s. Balmakund A. I. R. 1924 P. C. 198 and to the case in Ranjit Sahi V/s. Maulavi Qasim A. I. R. 1923 Pat. 342 and came to the conclusion that the Subordinate Judge had no jurisdiction whatsoever to dismiss the suit after the preliminary decree had been passed merely because there was delay in producing the commissioner's fees. In Mt. Bhatia V/s. Abdus Shakur A. I. R. 1931 Pat. 57, a preliminary decree had been passed and thereafter an application had been made to ascertain the mesne profits against the heirs of the sole "defendant who had died in the meanwhile. The heira filed a petition of objection asserting that they could not be proceeded against on that date as Mt. Etwaria had died beyond the period fixed by the statute. As a matter of precaution the plaintiff then applied to have the abatement set aside. Ross J. who delivered the judgment of the Bench, held that in these circumstances there could be no question of abatement because the preliminary decree had been passed, and from the principle of the decision of their Lordships in Lachmi Narain V/s. Balmakund A. I. R. 1924 P. C. 198 it followed that there could be no abatement in the case. Reliance was placed before him on the Full Bench decision of this Court in Jungli Lall V/s. Laddu Ram A. I. R. 1919 Pat. 430. But that case was distinguished by the learned Judge upon the ground that there the decree had been passed against a dead, man and it ia possible that in such a case different considerations might arise; but it was pointed out by a Full Bench of the Madras High Court in Perumal Pillai V/s. Perumal Chetty A. I. R. 1928 Mad. 914 which dealt with precisely the same question as is now under consideration, that the authority of a decision of that Court that there was abatement had been very much shaken by the Privy Council decision in Lachmi Narain V/s. Balmakund A. I. R. 1924 P. C. 198 and consequently it is not clear after that decision of the Privy Council whether the decision of this Court in Jungli Lall V/s. Laddu Ram A. I. R. 1919 Pat. 430 is authoritative. The Full Bench of the Madras High Court held that Order 22, Rules 3 and 4 do not apply to cases of death of parties after the passing of a preliminary decree.