LALA BANWARI LAL Vs. LALA BENI PRASAD

JUDGEMENT

(1.) This is a first appeal brought by certain defendants against an order of 9th December 1936 by the learned Civil Judge of Allahabad, and the appellants ask that this Court should direct that complete accounts should be taken and adjusted between the parties up to the time when the suit finally terminates. The case arose in a partition suit brought by a member of a joint Hindu family claiming 1/60 share and asking for delivery of separate possession of his share. A preliminary decree was passed in favour of the plaintiff on 14 February 1927, and on 30 January 1930 the trial Court ordered that the plaintiff should prepare 60 lots. Certain defendants preferred an appeal against the preliminary decree to the High Court, F.A. No. 262 of 1927 which was withdrawn. A civil revision was filed by certain parties including the plaintiff in the High Court and that revision was the subject of a compromise which was embodied in an order of this Court on 13 July 1931. That order seta out among other points: There will be no accounting for mesne profits prior to the institution of the suit, but the entire net income after meeting the necessary expenses or losses during the pendency of the suit shall be a part of the divisible property; the exact amount to be ascertained by reference to the books of account.

(2.) In accordance with that compromise a Commissioner was appointed and learned Counsel for the appellants points to an order of the trial Court, Mr. Brij Behari Lal dated 27 July 1934 headed "Directions of the Court to the present Commissioner". Para. 4 of those directions stated: "The last balance shall be up to Diwali 1933". Para. 6 : "These directions are subject to the terms of the compromise which are to be carried out".

(3.) Now learned Counsel for the appellants points out that in a petition dated 27th February 1933 to the Commissioner the contesting defendants had urged in para. 2 that the accounts as they stand from the date of institution of the suit up to the date of the passing of final decree have only to be looked into and ascertained by the Commissioner.