The main legal point established in the judgment is the interpretation and application of Section 4 of the Partition Act 4, 1893 in determining the entitlement to a share in homestead lands.

JUDGMENT

Mukerji, J. - This appeal has arisen out of a suit which was instituted for partition of certain homestead lands, to a one third share in which the plaintiffs had been declared entitled to in a previous suit between the parties. The trial Court made a preliminary decree for partition declaring the plaintiffs' right to get a one-third share in the lands and directing the appointment of a commissioner to effect the partition by metes and bounds. On an appeal being preferred by the defendants the Subordinate Judge discharged the preliminary decree aforesaid and ordered

that as the defendants are willing to buy the plaintiff' share and to pay a reasonable price of the land in suit, a value of the plaintiff' share would be made by a commissioner by a local inquiry unless the price be agreed to by the parties, and that share of the plaintiffs would be sold to the defendants u/s 4, Partition Act.

2. The plaintiffs then appealed to this Court The decree of the Subordinate Judge was made on 31st March 1925, and the appeal was preferred to this Court on 29th June 1925. The record of the suit, however, arrived in the Court of first instance on 13th May 1925, and notwithstanding that orders were passed for agreeing upon a price of the share or taking steps for the appointment of a Commissioner to ascertain the same, neither party did anything in connexion with the suit in that Court till December 1925. In the meantime, it may be observed, the suit was put up before the Munsif on no less than sixteen occasions and on as many different dates. On one of these dates the plaintiffs were called upon to deposit the fees for the commission, but this order was not complied with. On 9th December 1925, peremptory order was passed adjourning the suit to 21st December 1925, and warning the parties that no further time would be allowed. On 21st December 1925 the plaintiff applied for a further adjournment, but the Munsif refused the application as the pleader who moved the application had no further instructions and the suit was dismissed. Whether there was any appearance on behalf of the defendants on that date it does not appear nor is it clear what their attitude was with reference to the suit. Be that as it may, the order that was passed was worded thus:

The learned pleader has no further instructions. As the plaintiff does not deposit costs of commissioner as directed hence the Court is not in a position to move further. I do not see I have any other alternative than to dismiss the suit. It is accordingly dismissed.

3. No steps have been taken to set aside the dismissal of the suit.

4. The first question which arises is whether in the circumstances aforesaid the appeal is maintainable. It is argued on behalf of the appellant : first, that with the reversal of the Subordinate Judge's decision in this appeal, all subsequent orders that may have been passed in the suit, including the order of dismissal aforesaid, will as a necessary consequence of such reversal pass away; second, that the Munsif had no jurisdiction to dismiss the suit in view of the decision of the Judicial Committee in the case of Lachmi Narayan Marwary v. Balmakund Marwary AIR 1924 P.C. 198 and so his order should be treated as a nullity; and third, that the present appeal may be converted into an appeal embracing a challenge against the decree of the Munsif dismissing the suit.

5. There are difficulties in the way of accepting the first and the third of the aforesaid contentions in their entirety. As regards the second contention it seems unnecessary to go into the question whether in the events that happened the order of dismissal could be justified on the failure on the part of the plaintiffs either to appear or to take steps for the further progress of the proceedings. It is clear, however, on the authority of the decision in the case of Lachmi Narayan Marwary v. Balmakund Marwary AIR 1924 P.C. 198 that

after a decree has once been made in a suit, the suit cannot be dismisse