Decided on August 23,1976

BALADEV BASU Respondents

Referred Judgements :-



- (1.)This rule is directed against 3 orders passed by the Subordinate Judge, 6th Court, Alipore in Title Suit No. 71 of 1930. The orders complained of are orders nos. 1342, 1401 and 1422 dated respectively August 12, 1974; March 19, 1975 and May 24, 1975. As one of the aforesaid orders, namely order No. 1342 dated August 12, 1974 was not moved against within the period of limitation the petitioner has prayed for condonation of delay in moving the present application in so far as the said order is concerned, under section 5 of the Limitation Act, 1963.
(2.)The facts which are not in dispute between the parties are as follows: - The plaintiff-petitioner who is the younger son of the renowned mathematician, late K.P. Basu filed the aforesaid suit against his elder brother Jitendra and his mother Meghamala for partition and accounts Copy-rights in respect of certain works of late K.P. Basu formed one of the subject matters of partition. The copy-rights in question were sold in auction under the orders of the court.. The plaintiff petitioner auction-purchased the same for a sum of Rs.2,50,000/-. After deducting the sum of Rs.83,335-5 as-4 pies being the 1/3rd share of the plaintiff-petitioner he deposited the balance sum of Rs.1,66,666-10-as-8p. in court. The original defendant no.1 withdrew his share of Rs.83,333-5 as-4p out of the aforesaid sum deposited by the plaintiff-petitioner in court. In so far as the share of Meghamala, the defendant no.2, in the sale proceeds was concerned, the parties entered into a compromise on the basis of which an order was passed on September 24, 1954. In terms of the said compromise the defendant no.2 withdrew the sum of Rs.20,000/- being a part of her share in the sale proceeds and the balance amount of Rs.63,333 and odd was invested in the business of the plaintiff-petitioner with a condition that the plaintiff petitioner would pay interests on the said sum of Rs.63,333 and odd to Meghamala, the defendant no.2 at the rate of 9% per annum. It was further provided that after the death of the defendant no.2 half of the aforesaid sum of Rs.63,333 and odd will be payable to the defendant no.1 Jitendra. Meghamala, the defendant no.2 died on 19th June, 1961 and the defendant no.1 claimed that on her death half of the money amounting to Rs.31,666 and odd became payable to him by the plaintiff. The defendant no.1 filed a petition on 18th February, 1963 praying for a direction upon the plaintiff-petitioner to pay the said sum of money to the defendant no.1. In this petition there was no prayer for payment of any interest by the plaintiff. Subsequently on or about 13th August, 1967 the defendant no.1 filed another petition in which a prayer was made for a direction upon the plaintiff to pay interest at the rate of 9% per annum on the aforesaid amount of Rs.31,000/- and odd. The prayer of the defendant no.1 for payment of Rs.31,000/- and odd was allowed by the court by order no.1311 dated August 6, 1969 but no direction for payment of interest was passed. Against the said order a grandson of the deceased defendant no.2 by her daughter moved this court and obtained Civil Rule 3520 of 1996, which was ultimately discharged by this court on 2nd March, 1970 and the order passed by the trial court was confirmed. Thereafter the defendant no.1 died on 3rd May, 1971 leaving a Will. The said Will was duly probated in favour of the opposite parties and they were brought on record in place of the deceased defendant no.1. On June 26, 1974 the opposite parties filed an application before the trial court for a direction upon the petitioner to pay to the opposite party no.1, one of the executors to the estate of the deceased defendant no.1 the aforesaid sum of Rs.31,000/- and odd with interest at the rate of 9% per annum from the 19th June, 1961 till the date of payment. The petitioner filed an objection to the said application. The trial court by its order no. 1342 dated 12th August, 1974 allowed the application filed by the opposite parties and directed the plaintiff to pay the aforesaid sum of Rs.31,666. 66p. together with interest thereon at the rate of 9% per annum from 19th June, 1961 till the date of payment. The opposite parties levied execution of the said sum in Title Execution Case No.7, 1975 praying for attachment and sale of the residential house of the petitioner. On September 9, 1974 the petitioner applied for review of the order under Order 47, rule 1 of the Code of Civil Procedure. The review application was however dismissed by the trial court by order no. 1401, dated March 19, 1975. The petitioner thereafter filed an application under section 151 of the Code on 2nd May, 1975 praying for vacating order no. 1342 dated August 12, 1974 after reconsideration of the application on which the said order was passed. This application was also rejected by the trial court by order no.1422 dated May 24, 1975. Against the aforesaid 3 orders the petitioner has obtained the present rule.
(3.)Mr. Saktinath Mukherjee, learned Advocate, appearing in support of the rule has contended before us that the instant suit was one for partition and accounts. He contended that in a suit for accounts there is an implied undertaking by the plaintiff that if ultimately anything is found due to the defendant from the plaintiff a decree in favour of the defendant will be passed. That being the position, he contended that the order for payment of the sum of Rs.31,000/- and odd to the defendant by the plaintiff before the accounts between the parties is finally settled, is not warranted by law. In support of this proposition be relied upon the decision in (1) Paramanand and another v. Jagatnarain, ILR 31 Allahabad 525. That was a suit brought by the principal against an agent for rendition of accounts. The agent expressed his willingness to render accounts but alleged that on such accounts being taken money would be found due to him; he did not however specifically pray for a decree for the sum alleged to be due to him. The court ultimately granted a decree to the agent upon the finding that money was due to him. It was held that the decree was justified with reference to the provisions of sections 215A and 216 of the Code of Civil Procedure, 1882, which correspond to Order 20, rule 16 and Order 20, rule 19 of the Code of 1908. Reliance was also placed by Mr. Mukherjee in support of this proposition on the decision in (2) Narendra Krishna Chakraborty v. Ashuthosh Bhattacharyya and others, 35 CWN 17. On behalf of the petitioner Mr. Mukherjee did not dispute the liability of his client to pay the sum of Rs.31,000/- and odd which was payable to the defendant No.1 on the death of the defendant no.2, but what was objected to is the enforcement of the immediate payment of the said amount at this stage of the suit. It was contended that there was nothing in the compromise which was arrived at between the parties and which was recorded by Order No.997 dated 24th September, 1954 to show that the money would have to be paid immediately; on the other hand, contended Mr. Mukherjee, there are sufficient indications in the consent order to show that the amount would become payable only after the accounts are finally settled. For this purpose Mr. Mukherjee relied upon several clauses mentioned in the aforesaid consent order dated 24th September, 1954.The relevant clauses of the said consent order are as follows: - "? ? ? ? ? ? (c) Out of her share of the sale proceeds namely Rs.83,333.54 the defendant no.2 will be entitled to withdrew the sum of Rs.20,000/-, which sum she will get absolutely. The balance viz., Rs.63,333.54 will be invested in the plaintiff's business, K. P. Basu Publishing Co. and K. P. Basu Printing Works. The plaintiff will pay to the defendant no.2 during her lifetime the interest on the said sum of Rs.63,333.54 at the rate of 9% per annum. ? ? ? ? ? ? ? (f) The plaintiff and the defendant no.1 undertake not to deal with or dispose of their respective shares in the residential house (11, Mahendra Gossain Lane, Calcutta) or the Dehrion-Sone property or the Imperial Bank shares till the accounts between them are finally adjusted and the dues and obligations as between them fully satisfied. (g) One half of the sum of Rs.63,333.54 mentioned in clause (c) above will be payable to defendant no.1 after the death of the defendant no.2. ? ? ? ? ? ? ? From these provisions it was contended on behalf of the petitioner that the agreement contemplated that although the amount of Rs.31,00/- and odd in the share of the defendant no.1 was payable by the plaintiff to the defendant the said payment must await the final adjustment of accounts between the parties.

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