BADEMIAN SAHEB (ADJUDGED INSOLVENT) Vs. PMJANKAN SAHEB

JUDGEMENT

(1.) The petitioner filed a suit in the Court of the District Munsiff of Dharmapuri for the taking of accounts of a partnership. A preliminary decree was passed on the 9 of October, 1933 and the District Munsiff appointed a Commissioner to take the accounts. The plaint contained no-allegation of irregularity or fraud, but during the taking of the accounts the petitioner wished to urge that certain transactions had been suppressed by the respondent and consequently asked that these matters should be inquired into. On objection being raised to this course the petitioner applied to the Court for an order directing the Commissioner to inquire into the alleged irregularities. By an order dated the 10 of February, 1934, the District Munsiff held that it was beyond the province of the Commissioner or the Court to embark on an inquiry into these allegations. He considered that it was then too late. The petitioner had had an opportunity of inspecting the accounts and as no objection had been raised before the passing of the preliminary decree the petitioner must be deemed to have waived all objections. The petitioner thereupon applied to this Court for revision of the order. The matter came before Beasley, C.J. and Venkataramana Rao, J., on the 8 February, 1937. Feeling some doubt as to the correctness of the decision of the Full Bench of this Court in In re The District Munsiff of Tiruvallu (1911) 24 M.L.J. 637 : I.L.R. 37 Mad. 17 (F.B.), the following question was referred to a Full Bench of five Judges: Are Civil Rules of Practice made under the Code of 1882 but not re- enacted and published in accordance with the procedure prescribed in Part X of the Code of 1908 and inconsistent with any of the rules of the first schedule of the latter Code valid and have they any legal effect?

(2.) The Court as now constituted is called upon to give the answer.

(3.) The Civil Rules of Practice relating to suits for the dissolution of partnership and the taking of accounts are inconsistent with Order 20, Rule 17 of the Code of Civil Procedure and it is this fact which has given rise to the question now under discussion. The Civil Rules of Practice require questions of irregularity or fraud to be raised and determined before the case is remitted to the Commissioner for the taking of the accounts. Order 20, Rule 17 of the Civil P. C., however, states that the Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised. Therefore the Code allows questions of irregularity and fraud to be raised before the Commissioner if the Court considers that this should be done. It is to be observed that the Civil Rules of Practice were framed under the Code of 1882, which did not contemplate a preliminary decree in a partnership suit.