SRIMATI JASHODA DASEE Vs. UPENDRA NATH HAZRA

JUDGEMENT

(1.) This Rule was issued at the instance of the plaintiff in a suit for partition. The properties to which the suit related consisted of moveable and immoveable properties and a partnership business or joint karbar. A. preliminary decree for partition was male by the Subordinate Judge in the trial Court on the 30th November 1914. From that decree the defendant, the opposite party before us, filed an appeal to the High Court. During the pendency of the appeal the High Court made an order staying proceedings upon the preliminary decree in so far as it related to the joint karbar, but no further. The trial Court thereupon appointed a Commissioner to effect a partition of the properties other than the karbar. The Commissioner s report was duly submitted and on the 14th April 1915 the matter came before the learned Subordinate Judge and he delivered judgment. The judgment slates that there was no objection by any of the parties to the Commissioner s report and goes on to direct that the proceedings of the Commissioner should be confirmed and the suit decreed accordingly. The. language of the decree follows that of the judgment. The question which arises is whether that decree was a decree finally disposing of the whole suit. Obviously it was nothing of the kind. The decree disposes of that part of the suit which had been referred to the Commissioner and with reference to which the Commissioner had submitted his report. When the Subordinate Judge spoke of the suit being disposed of, he clearly meant that the suit was disposed of in regard to that part of it with which the Commissioner had dealt. At that time the stay order made by this Court was in force and the Subordinate Judge had no power then to deal with the suit in so far as it related to the karbar.

(2.) The appeal to the High Court from the preliminary decree was dismissed on the 22nd June 1916. The plaintiff then applied to the trial Court, over which another Subordinate Judge was now presiding, for partition of the joint karbar. The application purports to have been made under Section 151, Civil Procedure Code, apparently on the footing that the decree of the 14th April 1915 required some amendment. In my opinion in the circumstances it was quite unnecessary to amend that decree. All that the plaintiff had to do was to apply to the Court to go on with the suit and make a supplementary final decree in regard to the karbar. The learned subordinate Judge, however, seems to have been puzzled by the form of the application and on the 8th August 1917 he made the order with reference to which this Rule has been issued. By that order he declined to accede to the application and suggested that the only course open to the plaintiff was to apply for a review of the decree under Order XLVII. That amounted, as it seems to me, to a refusal to exercise a jurisdiction vested in him. It was quite competent to him to deal with so much of the suit as had not already been dealt with. In this connection reference, may be made to the case of Muhammad Abdul Marid v. Muhammad Abdul Aziz 24 I.A. 22 at p. 32 : 19 A. 155 : 7 Sar. P.C.J. 111 : 9 Ind. Dec. (N.S.) 103. It is conceded that if the suit can proceed without any amendment of the previous decree no question of limitation arises.

(3.) The result is that the Subordinate Judge s order of the 8th August 1917 should be discharged and the case remanded in order that the Subordinate Judge may proceed with the remainder of the suit and dispose of it in accordance with law. The Rule is made absolute in these terms. The petitioner is entitled to his costs of the Rule, which we assess at three gold mohurs.