B.C.Mitra, J. - (1.) This is an application for a certificate under Article 133(1) of the Constitution. The petitioner and the respondents Nos. 3, 4 and 5 are the daughter and sons respectively of one Srish Chandra Paul, since deceased. The petitioner is the youngest daughter of the deceased and the respondents Nos. 3, 4 and 5 are three of his surviving sons.
(2.) In 1946, the widow of the said Srish Chandra Paul executed a deed of gift in favour of her three sons, but later she instituted a suit in this Court being Suit No. 1045 of 1957, for cancellation of the deed of gift, and for partition of the estate, left by her deceased husband. In 1958, the widow died leaving a will whereby she bequeathed her entire estate to the petitioner and her youngest son Gour Chandra Paul, who is respondent No. 5 in this application. The petitioner was transposed to the position of ft plaintiff in the said suit. In February, 1960, file petitioner also applied for grant of letters of administration in respect of the estate left by her mother. This application being contested was marked as a contentious cause and was numbered as Testamentary Suit No. 12 of 1962.
(3.) The Testamentary Suit and the Partition Suit appeared in the list of Mallick, J., and oral evidence was taken in the Testamentary Suit, but before the hearing of this suit was concluded an order was made by Mallick, J., on January 4, 1963, in the following terms: "It is recorded that all the parties consent to this testamentary suit as well as the partition suit being suit No. 1045 of 1957 and all the disputes involved in these two matters be settled and referred to the sole arbitration of the Hon'ble Mr. Justice Mallick and the parties agree to abide by any decision that will be given and no evidence need be taken except as to what his Lordship might desire and the evidence need not be recorded in any formal manner. Parties agree that his Lordship would have all the summary powers including the power to divide and partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition, if necessary, to engage or appoint surveyors and commissioners as his Lordship thinks best. It is recorded that all the parties have referred this matter to the learned Judge in what is known as extra cuirsum curiae jurisdiction of this Court. It is further recorded that all the parties agree that they will not prefer any appeal from or against the decree or order that may be passed by his Lordship the Hon'ble Mr. Justice Mallick." On April 1, 1963, Mallick ]., passed an order in the said Suit No. 1045 of 1957 adjudicating upon various disputes between the parties. The laid pronouncement made by Mallick, J., was filed in due course, and a draft was issued to the parties for settling the same, with a view to drawing up a decree thereon. Thereupon the petitioner moved a writ petition in this Court for a writ in the nature of mandamus directing the Registrar, Original Side of this Court to recall, cancel and withdraw the filing of the pretended award dated April 1, 1963, or to forthwith take off the said pretended award from the file and/or the records of the said suit. On September 5, 1963, Banerjee, J., made an order rejecting the prayer for a rule nisi. After various proceedings, to which it is not necessary to refer, for the purpose of this application, Sinha and A.K. Mukherjee, JJ., allowed the petitioner's appeal against the said order of Banerjee, J., and directed the issue of a rule nisi. This rule was heard by Mallick. J., who by his judgment dated August 26, 1964, discharged the rule. An appeal was preferred against this order discharging the rule and this appeal was disposed of by this Bench by a judgment dated February 18, 1965, Arati Paul v. Registrar O. S. H. C. whereby the appeal was dismissed with costs. It is from this judgment that the petitioner proposes to prefer an appeal to the Supreme Court and for that reason she prays for the certificate mentioned above.;