BIRDICHAND Vs. LAKHMICHAND

JUDGEMENT

(1.) THIS is an appeal ostensibly from the final decree in a partition suit made after the Commissioner's report was received by the trial Court and the objection of the parties heard. Actually, however neither is the preliminary decree a real decision by the Court of the facts in dispute, nor is the Commissioner's report so-called one he could properly make under Order 26 rule 11, Civil Procedure Code. What has obviously happened is that the trial Court in the so-called preliminary decree based upon an alleged compromise (which at the most is only partial) abdicated in favour of the Commissioner's decision of issues which the Court itself should have decided.

(2.) THE facts of the case are simple and to some extent common ground. THE defendant-appellant and the plaintiff-respondent were partners in a joint venture for the collection and sale of forest produce. THE business seems to have gone on till 1954 and then stopped on account of mutual differences. Whether in terms of law the partnership stood dissolved at that time was another question. Anyway, the parties had their usual differences about various points of detail and accordingly the present respondent brought a suit for dissolution of partnership and rendition of accounts, against the defendant-appellant in 1955. THE suit took its usual course till 1959 when the parties filed what they called a compromise petition. But actually the field of compromise was very narrow and most of the points in dispute remained unsolved in spite of the show of settlement. THE compromise related only to the joint assertion that the partnership stood dissolved in 1954. Four other material problems remained unsolved, they being-

(3.) IT is obvious that not one of the four problems set out in the beginning and made over to the Commissioner for finding answers falls in any of the headings, least of all, the taking of accounts. IT is not merely a case of a wrong decision which we would allow to remain because neither party has challenged it at any earlier stage, but the Court acting without jurisdiction by abdicating in favour of somebody else and inviting his opinion instead of asking for his factual report on matters of mechanical detail.