Authored By : Thomas William Richardson, H. Walmsley

Thomas William Richardson, J.

1. This Rule was issued at the instance of the plaintiff ina suit for partition. The properties to which the suit related consisted ofmoveable and Immovable properties and a partnership business or joint karbar.A. preliminary decree for partition was male by the Subordinate Judge in thetrial Court on the 30th November 1914. From that decree the defendant, theopposite party before us, filed an appeal to the High Court. During the pendencyof the appeal the High Court made an order staying proceedings upon thepreliminary 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 theproperties other than the karbar. The Commissioners report was duly submittedand on the 14th April 1915 the matter came before the learned Subordinate Judgeand he delivered judgment. The judgment states that there was no objection byany of the parties to the Commissioners report and goes on to direct that theproceedings of the Commissioner should be confirmed and the suit decreedaccordingly. The language of the decree follows that of the judgment. Thequestion which arises is whether that decree was a decree finally disposing ofthe whole suit. Obviously it was nothing of the kind. The decree disposes ofthat part of the suit which had been referred to the Commissioner and withreference to which the Commissioner had submitted his report. When theSubordinate Judge spoke of the suit being disposed of, he clearly meant thatthe suit was disposed of in regard to that part of it with which theCommissioner had dealt. At that time the stay order made by this Court was inforce and the Subordinate Judge had no power then to deal with the suit in sofar as it related to the karbar.

2. The appeal to the High Court from the preliminary decreewas dismissed on the 22nd June 1916. The plaintiff then applied to the trialCourt, over which another Subordinate Judge was now presiding, for partition ofthe joint karbar. The application purports to have been made under Section 151,Civil Procedure Code, apparently on the footing that the decree of the 14thApril 1915 required some amendment. In my opinion in the circumstances it was quiteunnecessary to amend that decree. All that the plaintiff had to do was to applyto the Court to go on with the suit and make a supplementary final decree inregard to the karbar. The learned subordinate Judge, however, seems to havebeen puzzled by the form of the application and on the 8th August 1917 he madethe order with reference to which this Rule has been issued. By that order hedeclined to accede to the application and suggested that the only course opento 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 jurisdictionvested in him. It was quite competent to him to deal with so much of the suitas had not already been dealt with. In this connection reference, may be madeto the case of Muhammad Abdul Marid v. Muhammad Abdul Aziz 24 I.A. 22 : 19 A.155 : 7 Sar. P.C.J. 111 : 9 Ind. Dec. (N.S.) 103. It is conceded that if thesuit can proceed without any amendment of the previous decree no question oflimitation arises.

3. The result is that the Subordinate Judges order of the8th August 1917 should be discharged and the case remanded in order that theSubordinate Judge may proceed with the remainder of the suit and dispose of itin accordance with law. The Rule is made absolute in these terms. Thepetitioner is entitled to his costs of the Rule, which we assess at three goldmohurs.

4. Let the record be sent down at once.

H. Walmsley, J.

5. I agree.

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Jashoda Dasee vs.Upendra Nath Hazra (11.02.1918 - CALHC)