BROJENDRA KUMAR DAS Vs. GOBINDA MOHAN DAS

JUDGEMENT

(1.) The plaintiffs brought the suit giving rise to these proceedings in 1909, for declaration of title to certain stares in a certain partnership business with its branches, for dissolution of the said partnership and for accounts. The suit went on for several years through various vicissitudes of fortune until in March 1914, the plaintiffs made a compromise with the principal defendants and on receipt of consideration from them made an application for withdrawing from the suit, the said defendants giving up costs. The petition of compromise stated the nature of the settlement, but did not ask for any relief and in fact under the circumstances related no decree was required, as the plaintiffs stated that they had received the value for the rights given up by them under a deed of release.

(2.) Upon the said application being made by the plaintiffs, the appellants before us, i.e., the defendants who had not joined in the petition of compromise, applied to be made plaintiffs, to amend the plaint, and to continue the suit as one on their behalf. The learned Subordinate Judge refused their application on the ground that the present Civil Procedure Code did not authorise him to make the transposition asked for, that the applicants had not asked for retaining the original plaintiffs on the record as defendants, that there was conflict of interests between the original plaintiffs and the appellants, so that it could not be said that the old suit was to be continued. The suit was accordingly dismissed without costs as the objectors did not ask for costs. The appellants then asked that a decree might be prepared so that they might appeal from the same, but the learned Subordinate Judge refused their application saying that no decree was necessary as the suit had been dismissed for want of prosecution. Against the said order the appellants filed the above appeal and as an alternative obtained the above Rule.

(3.) If the Court below had been bound to make a decree and had not, we might have entertained the appeal.