Judgement

Appeal (No. 4 of 1923) from an Order of the High Court (June 8, 1924) reversing an Order of the Subordinate Judge of Ranchi.

The facts material to the question of procedure raised by the appeal, and the decisions thereon by the Courts in India, appear from the judgment of the Judicial Committee.

1924. June 24. E. B. Raikes for the appellants referred to Order xvii., rr. 2, 3 ; Order ix., rr. 3, 8; Government of India Act, 1915, s. 107; and Amir Hassan Khan v. Sheo Baksh Singh. (( 1884) L. R. 11 I. A. 237.) Dube for the first respondent was not called upon.

July 10. The judgment of their Lordships was delivered by

LORD PHILLIMORE. This is a suit for partition brought in 1913 by the youngest of a family of brothers against two of his brothers and the children of a third brother.

The eldest brother of all was omitted from the suit, because it was suggested that he was already separate in estate. The original defendants, however, disputed this; and he was at their instance made a defendant party.

At the hearing the Subordinate Judge took the view that he was separate and dismissed him from the suit.

Appeal was thereupon taken to the High Court at Patna, and ultimately the following consent decree was made "It is agreed by all the parties that if the property which is now in possession of Shew Narayan Marwari is brought into the hotch-pot, they will accept a partition on any terms that the Court shall direct.

" These appeals are accordingly dismissed in terms of the following Order The whole property will be divided into four equal shares, of which the plaintiff will get one. Shew Narayan Marwari, however, will be entitled to retain the property which is now in his possession on payment in cash of any amount by which his share will be found by the lower Court to exceed the value of one-fourth share of the whole property. In the event of the property now in possession of Shew Narayan being found to be less than the value of one-fourth share of the whole property, he will be entitled to receive an amount by which this property is found less than the value of one-fourth share. Each party will bear its own costs throughout. Patna, June 26, 1919."

The suit was thereupon remitted to the Subordinate Judge in order that the necessary steps for effecting the partition of the undivided property into fourths and that the valuation of the eldest brothers share might be taken.

After decree it is open to any party to a suit, to whose interest it is that further proceedings be taken, to initiate the supplementary proceedings ; but in the ordinary case it is the plaintiff who moves.

The Subordinate Judge accordingly fixed a day for hearing the parties and gave them notice. But when the day came neither the plaintiff nor his pleader appeared. The defendants, or some of them, were represented, but took no steps ; and the judge, after waiting all day, made the following order "5.11.19. I have been waiting for plaintiff and his pleaders till 4.20 p.m., but no one appeared on repeated calls. Defendant is present. The suit is dismissed for want of further prosecutions."

This was an unfortunate order. It appears from a subsequent judgment delivered by the learned judge that it was rather made in terrorem, and in the expectation that the plaintiff after this sharp reminder would put himself in order by applying within the prescribed period of thirty days to have the order set aside, submitting to the necessary consequence of having to pay the costs thrown away by reason of his neglect.

The plaintiff, however, was again dilatory, and his pleader does not seem to have been well versed in the procedure, with the result that no such application was made in time, and recourse had to be had to the High Court; and even then the first application was irregular.

The High Court was, however, fortunately in the interests of business and of justice, able to mould the application into one for the exercise of its powers of revision under s. 115 of the Code of