DARGAHAN BIBI Vs. JYOTI PRASAD SINGH DEO

JUDGEMENT

(1.) This matter comes before us after remand in a case in which the plaintiffs were the appellants to this Court. It arises out of an action which was brought by the plaintiffs who claimed that a certain rent sale in which defendants 2 and 3 were purchasers were not binding upon them. Incidentally I might mention that the sum paid by the appellants was Rupees 83,000. The contention of the plaintiffs originally in the action was that the sale was not binding on them for the reason that they were minors at the time of the action and they were not properly represented at the trial. The learned. Subordinate Judge came to the conclusion that they were minors, but he held that they were represented. On appeal to this Court, however, the learned Judges came to the conclusion (the point that they were minors was not seriously disputed at that stage of the action) reversing the decision of the Subordinate Judge, that the plaintiffs were not represented and therefore the action, the decree and the sale were not binding upon them in so far as their interest was concerned namely, one-third of the property.

(2.) In these circumstances, this Court found it necessary to remand the case for determination of certain matters which in substance were the taking of an account. The learned Subordinate Judge thereupon appointed a Commissioner who investigated the matters in question and made a report which, on the objection of one of the parties, was set aside. He then made a further report and presented it to the Court of the Subordinate Judge. The learned Subordinate Judge adopted the procedure of sending the report to this Court and it is now before us, without investigating the objections of either party, if any, without considering the report, and without coming to any independent judgment upon the matters in dispute. Now it is that procedure to which the defendants object, it having been found by the Commissioner that all that is due from the plaintiffs to the defendants is the sum of Rs. 118-3-8.

(3.) Mr. P.R. Das who appears on behalf of defendants 2 and 3, lays great stress upon the actual wording of the order of this Court, and I therefore think it necessary to read the relevant portions of it. Ross, J., in the course of his judgment states: It follows from the above conclusion that the plaintiffs have title to the property in suit and that their title was not affected by the decree in the rent suit and the sale in execution thereof. They are therefore entitled to a decree for recovery of possession. But it would be inequitable that they should recover possession without making good to the respondents the benefit which they have received from the payment made by the respondents on their behalf. The learned Judge then goes on to refer to define items which were paid but to creditors from this sum of Rupees 83,000, being the purchase money which was lodged in Court and states that these sums must be paid by the plaintiffs. He refers to certain other doubtful debts and then makes this statement: The balance of the purchase money was paid to other creditors and we are not in a position to say whether the plaintiffs were liable for these debts or not, and the Subordinate Judge will have to ascertain, on taking the account, how much, if anything, of these other debts the plaintiffs were liable for and that amount, when ascertained, will also have to be paid.