NIL KAMAL BHATTACHARJYA Vs. KAMAKSHYA CHARAN BHATTACHARJYA

JUDGEMENT

(1.) This appeal has arisen out of a suit which was instituted for partition of certain homestead lands, to a one third share in which the plaintiffs had been declared entitled to in a previous suit between the parties. The trial Court made a preliminary decree for partition declaring the plaintiffs right to get a one-third share in the lands and directing the appointment of a commissioner to effect the partition by metes and bounds. On an appeal being preferred by the defendants the Subordinate Judge discharged the preliminary decree aforesaid and ordered that as the defendants are willing to buy the plaintiff share and to pay a reasonable price of the land in suit, a value of the plaintiff share would be made by a commissioner by a local inquiry unless the price be agreed to by the parties, and that share of the plaintiffs would be sold to the defendants under Section 4, Partition Act.

(2.) The plaintiffs then appealed to this Court The decree of the Subordinate Judge was made on 31 March 1925, and the appeal was preferred to this Court on 29 June 1925. The record of the suit, however, arrived in the Court of first instance on 13 May 1925, and notwithstanding that orders were passed for agreeing upon a price of the share or taking steps for the appointment of a Commissioner to ascertain the same, neither party did anything in connexion with the suit in that Court till December 1925. In the meantime, it may be observed, the suit was put up before the Munsif on no less than sixteen occasions and on as many different dates. On one of these dates the plaintiffs were called upon to deposit the fees for the commission, but this order was not complied with. On 9 December 1925, peremptory order was passed adjourning the suit to 21 December 1925, and warning the parties that no further time would be allowed. On 21 December 1925 the plaintiff applied for a further adjournment, but the Munsif refused the application as the pleader who moved the application had no further instructions and the suit was dismissed. Whether there was any appearance on behalf of the defendants on that date it does not appear nor is it clear what their attitude was with reference to the suit. Be that as it may, the order that was passed was worded thus: The learned pleader has no further instructions. As the plaintiff does not deposit costs of commissioner as directed hence the Court is not in a position to move further. I do not see I have any other alternative than to dismiss the suit. It is accordingly dismissed.

(3.) No steps have been taken to set aside the dismissal of the suit.