Back
PATNA HIGH COURT
Rai and Raj Kishore Prasad JJ.
Ram Narain Prasad Sah
Versus
Ramji Prasad Sah
Civil Revision No. 262 of 1955 ;
Decided On : JANUARY 13, 1956
CIVIL PROCEDURE CODE - Section 105(1) - Appeal - Preliminary decree - Interlocutory order - Liability to pay amount - Appealability.
Fact of the Case:
Plaintiff brought two suits against the defendants. The first suit was a partition suit, and the second suit was a money suit for contribution. The two suits were tried together, and on the pleadings of the parties in the two suits various issues were framed; one of them was issue No. 19, Which was: "To what relief, if any, is the plaintiff entitled?" During the pendency of the aforesaid partition suit an application was made for appointment of a receiver in respect of the disputed properties, and this matter was compromised between the parties, and by an agreement between them it was decided on 15-9-52 that the plaintiff will be put in possession of all the lands in suit, excepting certain lands mentioned in the written statement of defendant I, and the plaintiff in lieu thereof shall deposit a sum of Rs. 22,837 per year, as half share of the produce of the land, which belonged to the defendants.
Finding of the Court:
The Court held that the direction given by the Court below in the judgment on 19-11-54 is without jurisdiction, because the Court had no jurisdiction to give the underlined direction, firstly, because no such prayer was made by the defendants in their petition dated 26-8-54, and, secondly, because the plaintiff was not heard on this matter, and, therefore, he had no opportunity to meet the order which he intended to pass. The Court further held that the order dated 30-4-54 is a part of the judgment dated 19-11-54, and it has been incorporated in the judgment which is followed by a decree, and that decree, therefore, will cover all the antecedent matters, and an appeal is provided under Section 96 of the Code against such a preliminary decree, and on appeal being preferred against the preliminary decree, the question of the liability of the plaintiff to pay the amount, or the correctness, of the order dated 30-4-54 and the refusal of the Court below to investigate the question regarding the nonliability of the plaintiff to pay the amount as agreed to before because of not getting possession over a portion of the properties, or because of the attitude of the defendants in cutting away the crops of the disputed lands will be considered.
Issues: 1. Whether the direction given by the Court below in the judgment on 19-11-54 is without jurisdiction? 2. Whether the order dated 30-4-54 is a part of the judgment dated 19-11-54? 3. Whether an appeal lies against the preliminary decree?
Ratio Decidendi: 1. The Court held that the direction given by the Court below in the judgment on 19-11-54 is without jurisdiction, because the Court had no jurisdiction to give the underlined direction, firstly, because no such prayer was made by the defendants in their petition dated 26-8-54, and, secondly, because the plaintiff was not heard on this matter, and, therefore, he had no opportunity to meet the order which he intended to pass. 2. The Court held that the order dated 30-4-54 is a part of the judgment dated 19-11-54, and it has been incorporated in the judgment which is followed by a decree, and that decree, therefore, will cover all the antecedent matters, and an appeal is provided under Section 96 of the Code against such a preliminary decree. 3. The Court held that an appeal lies against the preliminary decree.
Final Decision: The rule is discharged, and the application is dismissed; but, in the circumstances of the case each party will bear its own cost.
Raj Kishore Prasad, J.
1. This application in revision by the plaintiff is directed against an order passed on defendants" petition dated 26-8-54 simultaneously with and in the judgment itself, which the Court passed on 19-11-54, under issue No. 19 in Partition Suit 191 of 1950 and M. S. 14 of 1951, both of which were heard together by Mr. K. B. Verma, 1st Additional Subordinate Judge at Motihari.
2. This application raises an unusual question, which is of rare occurrence. The plaintiff brought two suits against the defendants. The first suit was a partition suit, which he brought against his brother, defendant 1, and his sons, for partition of his 8 annas interest in the properties, and for rendition of accounts.
The plaintiffs case was that he and the defendants remained joint till Bhado 1352 Rs., which corresponds to August, 1942, when they separated in mess, and some movables were divided, but some other movables remained joint, and the immovable properties were not partitioned and they remained joint. The plaintiffs further case was that ail the family documents concerning money-lending business, cultivation etc., remained with defendant 1, and he had realised various debts, as given in the plaint, and was evading sending account of the same to the plaintiff. The estimate of the plaintiff was that the defendants had realised about one lac of rupees. The plaintiff, therefore brought the partition suit, claiming half share in the properties in question, and also prayed for directing defendant 1 to render accounts from 1349 Fs. and also for a decree for partition of the standing and the future crops. The second suit was a money suit for contribu-tion. This suit the plaintiff brought against his brother, defendant 1, only. In this suit the plaintiffs case was that the defendant was liable to pay various amounts after partition, which he did not pay, and the plaintiff was compelled to pay the same, and as such the plaintiff brought the suit for contribution and claimed the amount paid fry him from defendant 1 with interest.
The two suits were tried together, and on the pleadings of the parties in the two suits various issues were framed; one of them was issue No. 19, Which was: "To what relief, if any, is the plaintiff entitled?"
3. During the pendency of the aforesaid partition suit an application was made for appointment of a receiver in respect of the disputed properties, and this matter was compromised between the parties, and by an agreement between them it was decided on 15-9-52 that the plaintiff will be put in possession of all the lands in suit, excepting certain lands mentioned in the written statement of defendant I, and the plaintiff in lieu thereof shall deposit a sum of Rs. 22,837 per year, as half share of the produce of the land, which belonged to the defendants.
It was further agreed that the plaintiff shall come in possession of the properties on the 1st of Baisakh 1350 Fasli, corresponding to 31-3-53. There were other conditions also, but they are not material.
4. On 21-5-53 the plaintiff filed a petition praying to direct defendant 1 not to interfere with plaintiffs possession over the lands, which had been entrusted to him for cultivation.
This petition was taken up on 26-8-53, and the Court after considering the defendants petition of rejoinder to the same observed that the plaintiff was entitled to take possession of all the lands in suit, except some, as agreed to between the parties, and, therefore, the defendants could possibly have no objection to the same, and as such the defendants were directed not to interfere with the plaintiffs possession with respect to the lands in suit.
5. On 12-9-51 the plaintiff filed another petition stating that in village Bhaisa jute crop had been grown by him over plot 2206, and the same had been forcibly cut, and taken away by defendant 1, in spite of the resistance of the plaintiffs servants.
On 14-9-53 the defendant 1 filed a petition admitting to have cut a
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
