Judgment

S. R. DAS, CJI. : This is a plaintiff s appeal against the judgment and decree passed on April 22, 1952, by a Division Bench of the Punjab High Court reversing the decree passed on July 1, 1947 by the First Class Subordinate Judge, Ambala in favour of the plaintiff and dismissing the plaintiff s suit No. 239 of 1946. The appeal has been preferred on the strength of a certificate granted by the Division Bench on December 19, 1952.

2. The facts material for the purpose of this appeal may now be shortly stated: One Lala Beni Pershad died in the year 1910 leaving him surviving his widow Mst. Daropadi (defendant respondent No., 2) and two sons by her, namely, Gokul Chand (Defendant respondent No. 1) and Raghunath Das (plaintiff appellant) who was then a minor. Lala Beni Pershad left considerable moveable properties including many G. P. Notes and also various immoveable properties including agricultural land, gardens and houses. After his death the family continued to be joint until disputes and differences arose between the two brothers in 1934. Eventually on November 12, 1934, the two brothers executed an agreement referring their disputes relating to the partition of the family properties to the arbitration of Lala Ramji Das who was a common relation. It is alleged that the respondent Gokul Chand had disposed of part of the G. P. Notes and that at the date of the reference to arbitration G. P. Notes of the value of Rs. 26,500 only were held by Gokul Chand, as the Karta of the family.

3. On June 21, 1936, the arbitrator made an award which was signed by both the brothers statdly in token of their acceptance thereof. The award was registered on July 28, 1936. By that award the arbitrator divided the immoveable properties and shops as therein mentioned. As regards the G. P. Notes the arbitrator directed and awarded that out of the G. P. Notes of the value of Rs. 26,500, which then stood in the name of Gokul Chand G. P. Notes of the value of Rs. 13,300 should be entered into the names of Gokul Chand and Mst. Daropadi and the remaining Notes of the value of Rs. 13,200 should be endorsed in the names of Raghunath Das and Mst. Daropadi and that till her death Mst. Daropadi should alone be entitled to the interest on the entire G. P. Notes of the value of Rs. 26,500 and that after her death Gokul Chand would be the owner of the G. P. Notes of the value of Rs. 13,300 and Raghunath Das of G. P. Notes of the value of Rs. 13,200. The arbitrator further directed Gokul Chand to pay to Raghunath Das a sum of Rs. 20,000 in four several instalments together with interest thereon as mentioned therein.

4. On August 31, 1936, Gokul Chand applied to the District Judge, Ambala under paragraph 20, of Schedule II to the Code of Civil Procedure for filing the award. During the pendency of those proceedings the two brothers entered into a compromise modifying certain terms of the award which are not material for the purpose of the present appeal. By an order made on November 18, 1936, the District Judge directed the award as modified by the compromise to be filed and passed a decree in accordance with the terms of the award thus modified.

5. On November 15, 1939 Raghunath Das made an application to the court of the District Judge for execution of the decree. The District Judge transferred the application to the court of the Subordinate Judge who directed notice of that application to be issued to Gokul Chand. Gokul Chand filed objection to the execution mainly on the ground that the decree had been passed without jurisdiction in that the District Judge had no power to pass a decree for partition of agricultural lands. The Subordinate Judge on December 23, 1942, accepted Gokul Chand s plea and dismissed the execution application. On appeal by Raghunath Das to the High Court a learned Single Judge on April 5, 1944, accepted the appeal, but on Letters Patent Appeal filed by Gokul Chand the Division Bench on March 15, 1945, reversed the order of the Singl