Dua, J. - (1.) IN a suit for dissolution of partnership and rendition of accounts, a preliminary decree was passed by the Senior Subordinate Judge, Simla on 29th June, 1960. Shri Kailash Chand, Advocate was appointed Commissioner to go into the accounts and submit his report on 27th July, 1960. It is conceded before me that the Defendant was the accounting party. The Plaintiffs were ordered to deposit Rs. 50/ -as Commissioner's fee ; so was Lal Singh contesting Defendant process -fee was to be filed half and half. On 27th July, 1960 the Court called the case twice and dismissed the suit in default.
(2.) THE Plaintiffs thereupon applied for restoration of the suit under Order 9, Rule 4, read with Section 151, Code of Civil Procedure. Lal Singh contested its restoration. The Court below framed a formal issue whether there were sufficient grounds for restoring the suit and after considering the respective affidavits filed by the parties decided the issue against the Plaintiffs holding the application not to be tenable Two revisions (Civil Revisions Nos. 607 and 676 of 1961) have been preferred in this Court against the impugned order. On revision, on behalf of the Petitioner his learned Counsel has drawn my attention to a judgment of the Privy Council in Lachmi Nara -yan v. Balmukand Manwary, A.I.R. 1924 P.C 198. There, a suit for partition was dismissed by the trial Court, but on appeal to the High Court at Patna a consent decree was passed in terms of the, following order: - The whole property will be divided into four equal shares of which the Plaintiff will get one. Shew Narayan Marwari, however, will be entitled to regain the property which is now in his possession on payment in cash of any amount by which his share will be found by the lower Court to exceed the value of one fourth share of the whole property. In the event of the property now in possession of Shew Narayan being found to be less than the value of one -fourth share of the whole property, be will be entitled to receive an amount by which this property is found less than the value of one -fourth share. Each party will Dear its own costs throughout. The suit was thereupon remitted to the Subordinate Judge in order that the necessary steps for effecting the partition of the undivided property in to fourths and that the valuation of the eldest brother's share might be taken. The Court of first instance thereupon fixed a day for hearing the parties and gave there notice on that date, but neither the Plaintiff nor his pleader appeared. The Defendants or some of them were represented but they also took no steps. After waiting the whole day, the Judge dismissed the suit for failure to prosecute. It appears that the Plaintiff did not file any application for setting aside the above order. Recourse, however, had to he had to the High Court which under Section 115 of the Code set aside the order of the Court below restoring the suit to the file of the Subordinate Judge's Court Against the order of the High Court, the matter was taken to the Privy Council on appeal. It is in this background that the Judicial Committee observed that after a decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed on appeal and the parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. These observations clearly support the contention raised on behalf of the Petitioner's learned Counsel. Shri A.S. Gilani, Senior Subordinate Judge, Simla before whom also this authority was cited does not seem to have understood the real ratio of this decision and declined to restore the suit, (in my opinion erroneously ), with the observation that the Privy Council ruling was based on its own particular facts and, therefore, distinguishable. The facts were of course different but the true ratio is clearly applicable to the case in hand. The Petitioner's learned Counsel has also drawn my attention to Kirpal Singh v. Dalip Singh : A.I.R. 1936 Lah. 875, where Jai Lal J., following the Privy Council's decision observed that once a preliminary decree has been passed the suit cannot be dismissed in default. This was followed by the further observation that if an illegal order dismissing a suit in default has been passed by a Court it cannot be ignored either by that Court or by any other Court unless it is set aside in due course of law. In Beepathumma v. Abdul Kadar Moopen, A.I.R 1957 T.C. 197, a Bench of that Court held an order dismissing the suit for default of appearance alter a preliminary decree for partition to be without jurisdiction and, therefore, a nullity. Such an order, according to this decision need not be set aside, though it confirmed the competence of the Court to do so in exercise of its inherent jurisdiction.
(3.) IN my opinion, it is not necessary for me in this case to enter into the controversy whether such an order is an absolute nullity being without jurisdiction or it requires to be set aside, because the Plaintiff actually applied to have the dismissal in default set aside and the suit restored.;