PEARI MOHAN KUNDU Vs. MOHINI KANTA SAHA CHOUDHURY

JUDGEMENT

(1.) This is a matter which arises out of proceedings in a partition suit.

(2.) A Commissioner was appointed for making the partition without, however, settling his fees. On the 22nd December 1913, the order of the Subordinate Judge was as follows: "None of the parties turned up. So the Commissioners remuneration could not be settled. They will begin work at once and the remuneration matter will be put up on the 2nd January 1914." The matter was put up later on the 5th January and it was decided that only one Commissioner, namely Babu Pyari Mohan Kutidu, should be appointed. Then on the 29th May 1914, the Commissioner put in a petition asking for two mopths time and he was ordered to submit report within the time allowed. The question of his remuneration was left to be considered when the papers were filed and the quantity and quality of his work judged by Court. On the 19th February 1915, the Commissioner s bill was considered and Rs. 3,260 was passed as his fees besides travelling and other expenses. There seems to have been an objection; and upon the hearing of the objection on the 6th March 1915, the learned Judge says: I have heard the Pleaders of the parties and the Commissioner and they all agree that the Commissioner may get Rs. 400 less than what was allowed to him on the 19th February 1915. The Commissioner agreed to reduce his remuneration in consideration of his getting a handsome amount in all". After this, there was an application to the District Judge by some of the defendants complaining against the order of the Subordinate Judge and in this petition, the petitioners do not say anything about the agreement mentioned by the Subordinate Judge. In paragraph 9 of their petition they said that they expected that in the ordinary course the said bill would be submitted to the District Judge who would settle what was fairly payable to the Commissioner but that they understood that unfortunately the bill had not been sent up as usual. The learned Judge upon this seems to have issued notice to the parties and upon hearing them passed an order making a further reduction in the fees allowed to the Commissioner.

(3.) In speaking of the agreement, the learned Judge says, "It is said that Rs. 2,860 was fixed by a compromise. The Pleader states that the matter was not properly understood and that there was not any real compromise but only a failure to object by a party who had not the information necessary to enable it to object."