MT VAISHNO DITTI Vs. MT RAMESHRI

JUDGEMENT

(1.) In this case two appeals have been consolidated. Both arise out of proceedings which followed upon an Order in Council dated 30 July 1928, made in Appeal No. 84 of 1927. They are brought by Mt. Vaishno Ditti, who on 10 April 1923, filed her suit in the Court of the District Judge of Peshawar to establish her right to a quarter share in the property left by her maternal grandfather Balmokand and his widow Mt. Kauran. Balmokand had died in 1906 leaving a widow and five daughters of whom one (Ramo) died without issue, so that her share accrued to the others equally. The widow had died in 1909. The suit having succeeded before the District Judge, was dismissed on appeal by the Judicial Commissioner, but by the Order in Council already mentioned the decree of the District Judge was restored, ... subject to the following modifications: (a) that the appellant be granted a decree for a one-fourth share of the moveable and immovable property and (b) a decree for rendition of accounts as from 23 June 1910, with respect to her share with rents, profits and interest with costs here and in the lower appellate Court.

(2.) The family belongs to the community of Arora Sikhs. The original and substantive dispute was between the plaintiff and her mother's three sisters. It turned upon the fact that the plaintiff's mother Nikko (who had died in 1911) had been married in the lifetime of her father Balmokand. For this reason, it was contended, she took no share by inheritance, her sisters being preferential heirs. The matter was complicated by the circumstances that Balmokand's property had devolved upon his widow, that she had made a will and that a compromise decree had been obtained in a previous suit before the District Judge. For the purposes of the first of the two appeals now before the Board it is not necessary to say more than that the three daughters of Balmokand- Rameshri, Ravelo and Lalo-whose interest it was to exclude the plaintiff, were impleaded by her suit. Upon His Majesty's Order being received in India it became the duty of the plaintiff to apply to the Court of the Judicial Commissioner to enforce it, and the proper order to be made was an order transmitting it to the District Judge to be carried out so far as regards costs and delivery of possession by appropriate steps under O. 21 and so far as regards the account by appropriate steps under O.20, Rr. 16 and 17, Civil P.C. The language of Rr. 15 and 16 of 0. 46 is not well adapted to the case-by no means uncommon-of an Order in Council directing a remand or requiring further proceedings to be taken by the trial Court as such before arriving at a final determination of the suit. The effect of the Order in Council of 30 July 1928, so far as regards the direction for accounts was that of a preliminary decree and the same is true of the original decree of the District Judge dated 10 June 1924. Under the Code of 1908 the proceedings under a preliminary decree for accounts to obtain a final decree for money are proceedings in the suit and are not proceedings in execution in the technical sense of that word as used in the Code.

(3.) On 30 July 1929, the appellant presented to the Court of the Judicial Commissioner an application under O. 45, R. 15 (2). It asked for attachment of certain property, for possession of her one-quarter share, for payment of costs and for the taking of accounts. The application was meant and was treated as an execution application (though it was partly of a different character), and the order of 7 February 1930 was: "The application is made over to the District Judge, Peshawar, for execution". On 8 October 1930, the District Judge directed delivery of possession of the immoveables to be given under O. 21, R.35 (2) and took steps to realize the costs by attachment and to ascertain what moveable property existed. He also directed that a commissioner should take the accounts and report. On 27 June 1932, the commissioner reported that the appellant's share of rents, profits, etc., was Rupees 65,243.4.5. Objections having been filed to this report, the Senior Subordinate Judge dealt with them and increased the sum due to the appellant to Rupees 71,493-4-5. This he did by order dated 17 August 1932, and on the same date he recorded another order: "Arguments heard. Decree holder is entitled to Rs. 71,493-4-5 : vide order on file. Decree-holder to put up prayer by 29 and pay balance of court-fee". It appears that the appellant had paid court fee on Rs. 44,250 only, this being the sum at which she had valued her claim. On 29 August 1932, the matter was adjourned to 20 October and on that date another judicial officer, acting as Senior Subordinate Judge, dismissed the appellant's suit with costs by reason that she had not by that time paid the additional court-fee. He purported to act under para. 2, S. 11, Court-fees Act (7 of 1870). A formal decree was drawn up dismissing the suit with costs and an appeal therefrom to the Judicial Commissioner was dismissed on 8 April 1933. The appellant obtained from the Judicial Commissioner the usual certificate under S. 110 of the Code and on this matter comes before the Board as of right. Their Lordships are not of opinion that the order dismissing the appellant's suit can be maintained. S.11, Court-fees Act, is as follows :