Gopi Nath vs Gopalji

Courtney-Terrell, C.J.—This is an appeal from an order of the Subordinate Judge of Gaya by which he allowed the respondent to execute what he considered to be a decree of the Court in a partition suit. The appellant argues first that the supposed decree or order is not capable of execution at all inasmuch as it does not state or specify the parties by whom the order is to be carried out; secondly, whoever is bound by the supposed order to carry out the terms of the order it certainly includes persons other than himself; thirdly, that the whole of the obligations, if any, contained in the supposed order and binding on him and the other parties on whom it was made binding must be deemed to have been discharged having regard to the history of the transactions between the parties; and fourthly, on the ground that the provisions of Order 21, Rule 16, proviso 2, Civil P.C., apply to this particular case.

Having regard to the position of affairs on the first three points which he has urged, it is unnecessary for us to consider the fourth.

The facts may shortly be stated as follows: One Gopalji who is the respondent in this case began a suit for partition of the property of the family of which he was a member. He made the other members of the family parties to that suit, but inasmuch as he alleged that the karta was wasting the property he asked for an interim order for the payment to him of something by way of maintenance and the learned Subordinate Judge after discussion of the value of the estate made an order for the interim payment to him of Rs. 160.

The order was passed on 26th April 1930 and the operative terms are, after considering the status of the family, the relative status of this particular member of the family and the value of the estate:

I am of opinion that not less than Rs. 160 should be the monthly stipen dependents lite to cover the maintenance charges of the plaintiff''s family.

After that order the suit went on and ultimately there was a compromise petition. By this compromise petition the question of the precise shares of each member of the family in the estate was left to the decision of the Court. It was also provided that when that ascertainment of shares had been made that certain named arbitrators should proceed to allot the property by metes and bounds to the shareholders in such proportions as should have been decided by the Court.

That course was taken and one of the arbitrators filed a report of the proceedings which seems to have been accepted by the parties as a statement of the facts to the effect that the parties seemed to be getting on well with the sharing of the property amongst themselves and there was no need for further action on the part of the arbitrators. In the course of the proceedings one of the defendants to the suit died and a dispute broke out between certain of the defendants who were interested in that share as to the proportions between themselves in which that share was to be divided. Once more, after discussion between themselves, they came forward with a deed of settlement and to this deed of settlement all the members of the family then surviving were parties.

They dealt not only with the precise shares which were in dispute owing to the death of the deceased member, but they also dealt with other matters outstanding between them. The deed by means of which they settled all their outstanding disputes was dated 18th October 1930 and it was duly filed and exhibited on 28th November 1930. On 1st August 1931, a final decree was passed for the partition of the property.

In these circumstances the respective shares of the members of the family have been settled but the precise property which was to be allotted to each member had been ascertained and it must be taken that in the course of the ascertainment of the precise property to be allotted to each member there would have been taken into account the amount by which the plaintiff had anticipated his share by the receipt by him of the maintenance allowance made under the earlier order.

It is not open to him now to say that notwithstanding first of all the arbitration and secondly the dispute which was settled by the deed of 18th October that he still had some matter outstanding between himself and the other members of the family with regard to the satisfaction of his share. Therefore on the three grounds that in the form of the supposed decree there is nothing which can be executed and on the ground that he himself being a shareholder he would have had to contribute a portion of the amount necessary to raise his own maintenance allowance, and thirdly on the ground that matters must be deemed to have been wholly concluded between the parties, I am of opinion that the learned Judge was wrong in allowing this order to proceed to execution. It must be deemed to have been satisfied and the plaintiff has no further claim at any rate which can be enforced in the manner in which he seeks to enforce it. I would therefore allow this appeal with costs here and in the Court below.

We are informed by the learned advocate for the appellant that the amount claimed by the plaintiff was paid into Court by the appellant and has been withdrawn by the respondent. If this be the case the respondent will have to refund this sum and inasmuch as he is said to have given security for the withdrawal the appellant will be entitled to proceed against the security if the respondent does not refund the said sum. If the security should prove to be insufficient the appellant will have the right to proceed in execution against the person and property of the respondent.

Saunders, J.

I agree.