Decided on March 06,1970



- (1.) THIS appeal is preferred by Sukesh chandra Mallik, defendant No. 3, in a partition suit being title suit No. 58 of 1941 in the first court of Subordinate Judge, Alipore against an order rejecting his petition for superseding arbitration and also a petition for setting aside the Arbitrator's Award.
(2.) THE suit culminating in the present appeal offers an unpleasant picture of what seems to be an unending feud between the brothers over division of father's properties, although attempt was made to shorten the life of this litigation through arbitration. The father Pramatha Nath Mallik a hindu governed by Dayabagh School of Hindu Law died on September 21, 1934 leaving behind him his six sons and substantial landed properties some at Calcutta, one at Shillong and [majority of these at Chinsurah in the [district of Hooghly. He had also a business under the name of Mullick and co. as agent of Bharat Electric Bulb work Ltd. and also heavy amount of government Promissory Notes, furniture, jewelleries , one motor car and other valuables. On or about November 11, 1941 amiyalal Mullik then a minor son, represented by his sister's husband and next friend Radha Raman Dutta, filed the plaint for partition of their joint family properties against his other brothers, defendants Nos. 1-5 including the present appellant. In course of proceedings in this suit under an agreed order of reference dated April 31, 1942 the entire dispute was referred to the arbitration of one Raibahadur N. N. Chakraborty but as he left Calcutta his appointment was recalled. After this the present appellant filed written statement so also did the defendants nos. 1 and 4 jointly. Although defendants nos. 2 and 5 entered appearance they did not file written statement. On april 16, 1943 again on the joint petition of all the parties the entire matter in dispute in the suit was referred to arbitration of one Nrisinghapada dutta, then a senior practising Pleader of Small Causes Court of Calcutta and a distant common relation of the parties. On May 30, 1943 the arbitrator entered on the reference. After protraded proceedings, thereafter, before the arbitrator between June 1943 arid may 1948 the arbitrator signed and filed his Award on June 3, 1948 in court in which each of the parties were allotted in their respective one sixth share separately both immovable and movable properties including G. P. Notes, furniture, jewelleries, ornaments and other articles belonging to the joint family. On the same date the court directed the parties to rile objections, if any, within June 28, 1948 against the Award. As there was no objection against the Award by any of the parties the suit was finally decreed on June 28, 1948 in terms of the Award which formed part of the decree. On january 17, 1949 this final decree was signed and sealed.
(3.) THEREAFTER, the present appellant sukesh Mallik turned up and made an application under order 9 rule 13 and section 151 of the Code of Civil Procedure for setting aside the ex parte decree on the ground amongst various other objections that notice of filing the award was not served on him. This application was allowed by an order made on March 25, 1950 and the ex parte decree was set aside. Then on september 11, 1950 Sukesh filed objections to the Award with a prayer either to set aside or remit the Award for reconsideration. Upon these objections the court did not set aside the Award but remitted certain matters under the award to the arbitrator for reconsideration and rectification with direction to file a "fresh Award" within November 9, 1953.;

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