RADHEY LAL Vs. KANHAI LAL

JUDGEMENT

(1.) This is an appeal from a final decree in a partition suit which purports to be based upon an award given by certain arbitrators appointed by the par. ties just before the final decree in the suit was passed. The parties are brothers, the plaintiff being the younger brother of the defendant and both being the sons of one Basant Lal. On 18 June 1934, the plain, tiff instituted the present suit for the partition of properties, both moveable and immovable, and in Schedule 1 of the plaint he claimed that one of the items of the proper, ties to be divided between him and the defendant was cash amounting to nine lakhs of rupees. The plaintiff also made an application to the Court for the appointment of a commissioner to make an inventory of the joint properties on the allegation that the moveable properties were in danger of being removed by the defendant.

(2.) The defendant did not file any written statement, but he filed an application in which he denied some of the allegations made by the plaintiff and tried to resist the appointment of the commissioner. Ultimately a commissioner was appointed and before him on 23 June 1934 the parties presented a compromise petition. This petition recited that it had been settled, between the parties (1) that the plaintiff would accept 7 annas share in all the moveable properties, articles, cash, ornaments etc., and the defendant would take the remaining 9 annas, and (2) that the properties should be partitioned by three persons who had been chosen by the parties, the names of these persons being Nanda Lal Bhagat, Lachman Sao and Hari Kishun. The petition further stated that in whatever manner the aforesaid arbitrators shall partition and allot the properties, cash, articles and bond, ijara (deeds), decrees, etc shall be acceptable to both parties, and should, for any reasons, they fail to agree in the partition of any property the opinion of the majority shall, prevail and the partition shall take effect accordingly.

(3.) The arbitrators subsequently gave their award setting out therein details of proper, ties allotted to the plaintiff and the defendant respectively. They decided that the defendant had concealed a sum of three lakhs and not over nine lakhs of rupees as was alleged by the plaintiff, and to equalize the share of the plaintiff in the total asset, they directed the defendant to pay to him. a sum of Rs. 98,773 odd. Certain objections were preferred by the defendant to the award, but they were disallowed by the Subordinate Judge who directed the preparation of the final decree in accordance with the award. The defendant then moved this Court against the order of the Subordinate Judge giving effect to the award, but their application was dismissed. They have now preferred this appeal from the final decree passed by the learned Subordinate Judge and the main question which has been argued in this Court is whether an appeal lies from the decree. Para. 16 (2), Schedule 2, Civil P.C., provides: Upon the judgment pronounced according to the award a decree shall follow, and no appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award.