Bapna, J. - (1.) This case has come up before the Full Bench of this Court, as there was a difference of opinion between two learned Judges of the old Rajasthan High Court, and under Section 22(2)(b) of the United State of Rajasthan High Court Ordinance, 1948, the case was referred by the learned Judges to a Pull Bench. The case had been pending before the old Rajasthan High Court, and has come by transfer to this Court under Section 49 of the Rajasthan High Court Ordinance (No. XV of 1949).
(2.) The relevant facts are that there was a firm Ummaid Mal Dharam Chand carrying on money lending and other business at Udaipur, in which there were four partners, viz., Roshan Lal, Lakshmi Lal, Fateh Lal, and Omkar Lal. The first two had one-third share each, and the last two had the remaining one-third share. Disputes having arisen among the partners, they approached hiS hiGHNESS the Maharaja of Udaipur for dissolution of partnership and winding up of its affairs. By an order dated 'Sawan Sud' 9 'Samwat' 1993, four officers, viz,, Shri Jagannath Singh Menta, Shri Balwant Singh Kothari, Shri Jawan. Singh Ranawat, and Shri Dal Chand Agarwala, were appointed to settle the matter between the parties, Some of these officers were unable to act, and the matter was finally referred, to Shri Jawan Singh Ranawat, Shri Gamer Singh, Shri Jagannath Singh Mehta, and Shri Moti Lal Bonara. These gentlemen, however, thought it proper to take an agreement from the parties that they would agree to whatever might be decided by these gentlemen as arbitrators. The arbitrators gave a preliminary award on 22-12-1938, in which various objections of the parties were decided, and they submitted their opinion to the Mehkama Khas with a recommendation that three lots be made of the assets in accordance with the award, and as regards the liabilities, each of the partners should undertake to pay to such of the creditors as were related to him. The arbitrators submitted, their report to the Mehkama Khas of Mewar where the parties were directed to produce agreed lists of lots; but as the parties could not agree, the matter was referred again to His Highness, who ordered the Mehkama Khas to re-submit the papers with their opinion. Thereafter, four lists were prepared. Three of these lists related to the assets of the firm for distribution between the partners. The fourth list contained the detail of the liabilities, and certain assets were reserved in it, which after realization, were to be utilized towards satisfaction of the liabilities. This list is known as list A, and the relevant recommendation, when translated, is as follows: "Our opinion with respect to list A is that because various persons had deposited amounts with the partnership firm, and if any partner does not repay the amount, it would be contrary to the best traditions of 'Sahukars', therefore, it seems proper and convenient that the three partners should clear off the accounts of 'lenden' according to the list, and whatever may be left in balance may be distributed between the parties according to their shares." The Mehkama Khas recommended on the 3rd of May, 1940, that if their report was acceptable to His Highness, Shri Jawan Singh Ranawat and Shri Moti Lal Bohara be directed to enforce the recommendations. The aforesaid two gentlemen were appointed Commissioners to carry out the recommendations of the Mehkama Khas. Sometimes afterwards, Shri Bhagwat Singh Mehta and Shri Keshari Singh Ranawat were appointed Commissioners in place of the previous officers. These Commissioners proceeded to realize the assets reserved in list A, and to pay off the creditors mentioned in that list; but it was found that the assets reserved, though nominally kept at a figure higher than the debts to be paid actually fetched a less amount. The Commissioners accordingly passed an order on the 19th of June, 1946, that as the assets of list A were not sufficient to pay off the creditors in full, each of the partners should produce certain amounts, and if he did not do so, the amounts would be realized by attachment and Hale of his property. The amounts fixed for each party were different, as certain adjustments were made by the Commissioners as became necessary in distributing the assets of the partnership among the parties according to the three lots, which had been approved by the parties and the Mehkama Khas.
(3.) On the 28th of June, 1947, Lakshmi Lal and Paten Lal made a petition to the High Court of Udaipur for a writ of 'certiorari', (a) declaring that the realization of the assets mentioned in list A by tne Commissioners was invalid, (b) prohibiting the Commissioners from making payments to creditors contrary to the preliminary award dated 22-12-1938, and the order of the Mehkama Khas, dated 3-5-1940, (c) prohibiting the Commissioners from realizing the assets, or paying off the creditors, mentioned in list A without the consent of the petitioners, and (d) promoting the Commissioners from realizing any amount from the petitioners in addition to the assets reserved in list A for payment to the creditors.;