Lord Atkin:-

These are two appeals from orders of the Court of the Judicial Commissioner, North-West Frontier Province, made in what may be hoped to be the final stages of a protracted litigation in the course of a family dispute. T.R. Ditta, now deceased and represented by the respondents, was the son of one Teku Ram, by a wife who predeceased him. His two brothers, Guran Ditta and Hari Chand, are the sons by another wife, Mt. Gujri, who Survived him and was a party to the litigation. Teku Ram, amongst other property, was entitled to a deposit of Rs.1,00,000 in the Alliance Bank of Simla, in the names of his wife, Mt. Gujri, and himself or either or the survivor. After his death the widow instructed the bank to pay to the appellant, Guran Ditta, which they did on 14th May 1921 the amount with interest, amounting to Rs.1,05,000. In August 1921, T.R. Ditta commenced a suit against the two brothers and Mt. Gujri claiming that the Rs.1,00,000 was part of the estate of Teku Ram, and claiming his share, one-third, as part of the joint property. The widow set up an absolute gift to her, which was negatived by both the Courts in India, and a money decree was made against the widow and Guran Ditta jointly and severally for payment of the sum with interest, this amounting to Rs. 37,368. This amount was levied from Guran Ditta personally by attachment of a deposit of his with the Treasury, and was paid on 10th January 1925. Guran Ditta appealed to the Privy Council and the appeal was heard on 1st March 1928. Meantime T.R. Ditta had, on 10th November 1926, instituted another suit for the partition of the rest of the joint family properties consisting of immovables and the proceeds of Rs. 20,000 War Bonds. He, of course, excluded the lac of rupees which had been the subject of the first suit, in respect of which he had a decree. But, subject to this, it is quite clear that the suit was one for final partition of the whole of the joint family property.

On 22nd December 1927, the District Judge made a decree in favour of the plaintiff for "possession by partition" of the immovable property. On 24th April 1928 the Judicial Committee gave judgment on the first appeal. They affirmed the finding that there had been no gift of the lac of rupees to his wife, but held that it was contrary to practice unless in very exceptional cases to grant partial partition, and they set aside the money decree. They had been told that T.R. Ditta had commenced a suit for final partition of the whole property; and they thought that all further questions should be determined in the final partition. Unfortunately, the legal advisers of the parties in this country had not been informed when the case was argued on 1st March 1928, that the District Judge had made a decree in the partition suit on 22nd December 1927; and it is obvious that their Lordships were in fact unaware of this decree when they gave judgment. On the other hand, if they had known that it had been given, there is no reason to suppose that the decision would have been different. They would have known that the first decision would be of the nature of a preliminary decree, and that it would always be open to the parties before a final decree upon proper procedure to bring in further property for partition. At any rate, in fact as between the parties it was finally adjudged that T.R. Ditta was not entitled to his decree for Rs. 37,368. Thereupon Guran Ditta applied in the first action for restitution of the amount which he had paid on the money decree now set aside, and on 23rd December 1929, the District Judge made an order accordingly. He did not direct payment to Guran Ditta, but ordered that the sum of Rs. 37,368 be paid into Court with interest at 5 per cent from the date when it was paid in execution proceedings. The dispute in the first appeal is as to the order for payment of interest. On appeal to the Judicial Commissioner he set aside so much of the order as directed payment of interest, being o