S. Rangarajan, J.
(1) The above appeal has been preferred by defendants 5 to 7 (hereinafter called the appellants). This judgment will also dispose of R.F.A. (O.S.) 19 of 1973 which has been filed by defendants 2 to 4.
(2) The facts of the case and the events leading to the present appeals have to be briefly stated. The first defendant (who is the brother of Bhairon Prasad) died in 1968. Bhairon Prasad had a son Sardar Mal; both of them died in the year 1942. Gindori Devi (defendant No. 9) is the widow of Sardar Mal. Gaja Nand (first plaintiff) and Girdhari Lal (defendant No. 5) are the sons of Sardar Mal. Defendants 6 to 8 are the sons of defendant 5; plaintiffs 2 to 4 are the sons of the first plaintiff. The second defendant is the son of the first defendant and defendants 3 and 4 are the sons of the second defendant.
(3) Gaja Nand and his sons (plaintiffs I to 4) filed on 18-3-1952, a suit for partition and rendition of accounts of certain immovable properties and businesses which was dismissed by the learned Sub Judge 1st Class, Delhi, on 4-1-1956. There were two separate appeals, one of them by plaintiffs I to 4 and the other by defendants 5 to 8, to the High Court of Punjab which set aside the dismissal and passed a preliminary decree for partition on 10-2-1961, as prayed for in the plaint. Against the said decision defendants 1 to 4 filed two appeals in the Supreme Court of India both of which were dismissed on 2-12-1966 except for slight modification. In the meantime the final decree proceedings were allowed to go on, pending appeals in the Supreme Court; the passing of final decree alone had been stayed. A Commissioner was appointed by the trial court who submitted his report on 8-1-1965 ; it was accepted on 8-2-1965.
(4) On 31-7-1968 plaintiffs 1 to 4 (defendants 1 to 4) and the defendant 9 together filed a compromise in this Court (the suit which was pending in the lower court having been withdrawn to this Court on the creation of this High Court and conferring on it of original jurisdiction). S. N. Andley, J. (as his Lordship then was) recorded, on 14-8-1968, the said compromise and passed a decree in terms of the compromise between the plaintiffs, defendants I to 4 and 9 and according to the report of the Commissioner against defendants 5 to 8 who were then ex parte.
(5) On 30-12-1968 defendant No I died; no application for addition of L.Rs was made obviously because no proceeding was then pending. On 29-5-1969 defendants 5 to 8 filed an application for setting aside the ex parte decree passed against them on 14-8-1968. The said application was dismissed by P. N. Khanna, J. on 23-12- 1971. Defendant No. 5 filed F.A.O. (0.5) 13 of 1972 against the said order of P. N. Khanna, J. which was heard by us on 27-4-1972. Certain directions, which will be referred to later, were given by us though the appeal was dismissed. The matter came up further before Dalip Kapur, J. who directed a final decree to be prepared in the light of the directions given in his order dated 19-1-1973. On 31-1-1973 the plaintiffs and defendant No. 9 filed necessary stamp papers for the preparation of the final decree; the plaintiffs filed stamps on behalf of defendants 5 to 8 also on 2-3-1973 since without such stamps being filed on their behalf the final decree could not be drawn up.
(6) It is mentioned to us, and there is no dispute about it, that the draft of the final decree was put up before the Deputy Registrar for approval on 7-3-1973; it was listed for hearing before him, the counsel for the parties appearing and adjourned to various dates.
(7) On 14-3-1973 defendants 2 to 4 and defendants 5 to 8 filed two separate appeals against the order dated 19-1-1973 of Dalip Kapur, J, which were dismissed by Prakash Narain and R. N. Aggarwal, JJ. in liming on 22-3-1973 holding that though the appeal may lie against the final decree as drawn up none could be filed against the directions given by Dalip Kapur, J.
(8) The Deputy Registrar passed an order on 27-4-1973 accepting the draft of the final decree, to be typed on stamp papers. On 15-5-1973 defendants 2 to 8 applied for certified copies of the final decree, copies having been got ready on 28-5-1973. These two appeals have been filed -on 9-7-1973. Petitions (C.M. Nos 410 and 408 of 1973) have also been filed, respectively, in both the appeals for condensation of delay, if any, in filing these appeals. The final decree, as it has been drawn up, gives the date of final decree, according to the provisions of Order 20 Rule 7 Civil Procedure Code ., as the date of the judgment of S. N. Andley, J., namely, 14-8-1968.
(9) It is not in dispute that if the date on which the final decree was actualy drawn up is to be taken as the relevant date then no question of limitation would arise (after deducting the time requisite for obtaining copy of decree). On the other hand, if time is computed from 14-8-1968, the date of the judgment of S. N. Andley, J., the appeals would not be in time, because even the application for a copy of final decree was not made before it was actually drawn up. In seems that the time taken for preparing the decree and granting it could not be deducted under section 12(2) of the Limitation Act, 1963, if no application is made before it is drawn up. The material portion of section 12 of Limitation Act, 1963 reads as follows :
(10) '12(1) * * * * * (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) * * * * * (4) * * * * *
(11) Explanationn, computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded'.
(12) The language of the Explanationn seems plain; section 12(2) speaks of excluding (in computing time requisite for obtaining a copy of the decree) the date of Judgment; the' Explanationn does not permit the exclusion of any time if there has been no application for a copy before the decree is drawn up.
(13) A full Bench of the Allahabad High Court had held earlier in Keshar Sugar Works v. R. C. Sharma : AIR1951All122 (1) that the words 'requisite' and 'obtaining' in section 12 of the Act of 1908 meant that some definite step should be taken by the appellant himself towards the obtaining of the copy and if the appellant had not applied for the same before the copy was prepared it could not be said that time was required by him for obtaining the copy. A contrary view had been taken by a Full Bench of the Bombay High Court in Jayashankar, Mulshankar Mehta v. Mayabhai Lalbhai Shah : AIR1952Bom122 (2) that the entire time taken by the Court in preparing the copy must be taken to be the time requisite, within the meaning of the old section 12 and that it would make no difference as to whether the appellant had applied for the copy or not, before the decree was drawn up.
(14) Gajendragadkar, J. (as his Lordship then was), speaking for the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava : 2SCR918 (3) held-in a case arising under the Limitation Act of 1908 (prior to the coming into force of the Limitation Act of 1963)- that where a decree is not drawn up immediately or soon after judgment is pronounced and the aggrieved party not only applies for a copy of the decree before it is drawn up and does all that he could be making a proper application for the purpose of obtaining the necessary copies, the time requisite for obtaining those copies must necessarily include not only the time taken for the actual supply of the certified copy ofthe decree but also of drawing up of the decree itself. Stress was laid, even then, on the litigant having applied for the copy before the Court had drawn up the decree.
(15) Section 12(2) of the Limitation Act, 1963 was amended by incorporating the expression 'before an application for a copy thereof is made' in the Explanationn.
(16) Chandrachud, J. (as his Lordship then was) explained in Sitaram Dada Sawant v. Ramu Dada Sawant Air 1968 Bom 20 (4) that the previous decision of the Full Bench in Jawashankar Mulshankar Mehta was no longer good law after the Limitation Act of 1963, the object of the Explanationn being to require the appellant to apply for a copy of the decree even though the decree is not ready. We are in respectful agreement with this view, and express our dissent from the contrary view taken by some other High Courts in cases decided under the Limitation Act of 1963. It may be sufficient to refer to a very recent decision of the Mysore High Court, by way of illustration of the opposite view, where H. B. Datar, J. (in Krishnaji Vasudev Paradeshi v. N. R. Mattikoppa & Co. Air 1972 Mys 274 (6) followed a previous decision of the same High Court and of the Full Bench of the Bombay High Court but without noticing the effect of the change in the language employed by the Explanationn to Section 12 of the Act of 1963 or the decision of Chandrachud, J. in Sitaram's case. These appeals which are filed on the merits of the judgment of Andley, J. dated 14-8-1968 are clearly barred by time, the appellants not being entitled to the benefit of any exclusion of time under Section 12 of the Limitation Act, 1963. No reasons have even been given in C.M. 410 of 1973 (in R.F.A. (O.S.) 20/73) and C.M. 408 of 1973 (in F.R.A. (O.S.) 19/73) for excusing the delay in filing these appeals against the judgment of Andley, J' which are accordingly dismissed. This, however, does not disable us, as it will be shown presently, from going into the question whether the final decree, as drafted by the Registry in pursuance of the directions given by Dalip Kapur, J., is at variance with the directions given by the Supreme Court at the time of modifying the preliminary decree passed by the Punjab High Court and those given in the judgment of Andley, J.
(17) After hearing arguments on the question of limitation in both the appeals we had passed the following order on 18-30-1973.
(18) 'WE find that the question of the maintainability of the appeals including the question of limitation is so connected with the merits of the appeal such as are open to our examination that these have to be decided together. We, thereforee, admit the appeal subject to the consideration of its maintainability and of its being within limitation. The arguments on all these questions will continue and we will consider them in the decision of all the questions. Paper books have already been typed and no printing is necessary'.
(19) Both the appeals were heard subsequently.
(20) It would be necessary at the outset to notice the grounds on which plaintiff's suit was dismissed by the trial court, the same was later set aside and a preliminary decree for partition was passed by a Division Bench of the Punjab High Court, and how the Supreme Court found it necessary to make a slight modification while dismissing the appeals preferred against the said decision of the Punjab High Court. The family was carrying on trade in cotton and other commodities at Delhi, Calcutta, Khurja, Bhiwani, Bulandshahr and Mohindergarh and owned considerable property, movable and immovable. The business was carried on in the name of Ram Narain Gokal Chand with the head office at Bhiwani. In Delhi the business was carried on by the family in the name of Ram Narain Gokal Chand in partnership with outsiders (in the names of Kundan Lal Girdhari Lal, Delhi Cotton Trading Company and Eastern Supply Company). Gaja Nand, the first plaintiff, had addressed a letter on 2-1-1950 to defendants 1, 2 and 5 intimating that he did not desire to remain a member of the joint family and demanded partition within 2 weeks of the receipt of the said letter. On 18-3-1952 a suit was filed by the first plaintiff and his three sons (plaintiffs 2 to 4) for partition etc. The suit was resisted by the first defendant, his son (second defendant) and his son's sons (defendants 3 and 4) on the ground that the family had become disrupted even on 15-7-1942 at the instance of the fifth defendant. In support of this contention reliance was placed on separate entries being made in the accounts between, 1942 and 1945 into equal moieties, in respect of two branches of Girdhari Lal (representing Sardar Mal's branch) and the first plaintiff. Certain other contentions regarding who actually managed what item of business were also set out. The trial Judge, who raised only one issue, found that there had been severance of the joint family as early as July, 1942 and dismissed the suit. The High Court of Punjab held that the evidence was not sufficient to show disruption of the family in 1942 and granted a preliminary decree for partition and rendition of accounts as prayed for. The Supreme Court agreed with the High Court that the trial court's view that the status of the joint family was disrupted in 1942 was not correct and discussed, further, the date from which the liability of all the persons in management of the joint family properties and businesses to account arose. The following observations are material:
'INthe absence of proof of misappropriation or fraudulent and improper conversion by the manager of a joint family estate he is liable to account on partition only for assets which he has received, not for what he ought or might have received if the family estate had been profitably dealt with. But from the date on which the severance has taken place every member of the joint family who is in possession of the family property is strictly bound to account for all receipts and outgoings and he can take credit only for such expenditure as has been incurred for the benefit or necessity of the estate, and the net income after deducting such expenditure is to be divided among the coparceners according to their shares'. 'The High Court has not expressly set out the date from which the account is to be taken. But from the tenor of the judgment it appears that the account had to be taken from the date on which the severance of the joint family status took place i.e. from January 2, 1950. If after the date of severance of the joint family status, Girdhari Lal was in possession and management of any property of the joint family or entered into any dealings regarding thereto, undoubtedly he will be liable to account in respect of these properties and dealings'.
(21) It Is thus seen that the Supreme Court understood the High Court's decree as meaning that the accounts had to be taken from 2-1-1950 even though the date had not been expressly set out in the judgment. After holding that certain separate entries made in the accounts between 1942 and 1945 were not sufficient to justify the view of the trial court that there was severance of the joint family status, the Supreme Court explained that they only 'related to the debiting of expenditure incurred by the two branches for messing and other expenses and for debiting the items against the family fund which were distributed between the two branches'. The following directions were given by the Supreme Court:
'INtaking accounts the Commissioner will give effect to that arrangement, i.e. in partitioning the properties the Commissioner will debit for the period for which the arrangement remained in operation against each branch amounts which are debited to it in the books of account of the firm Ram Narain Gokal Chand at Delhi. Between GaJa Nand and Girdhari Lal, the amount debited to the branch of Sardar Mal will be equally divided'.
(22) It is worth recalling that the Commissioner had completed his report and the same had been accepted before the decision rendered by the Supreme Court. It is sufficient to state, without noticing details, that the Commissioner appears to have experienced lot of difficulty in the matter of proceeding with the enquiry on account of the non-cooperation of the persons who had to account. The Commissioner appears to have even filed an application before the trial court for getting a direction that if the defendants 5 to 8 did not produce their evidence on 23-3-1964, a date fixed, the Commissioner could proceed ex parte; a direction was given accordingly. The Commissioner, to whose report we shall have to revert in greater detail later, had adopted the procedure of inviting from the parties their statements of claims.- Defendants 5 to 7 did not file any statement of claims despite opportunity having been granted; they merely filed objections to the statement of claims made by the plaintiffs. The first plaintiff had given detailed evidence, mostly based on his study of the accounts which were produced before the Commissioner (which were transliterated) and asserted that the persons who managed defendants I and 5, had misappropriated specified sums of money. There was no evidence contra ; only Raghbar Dayal was examined and was cross-examined by the plaintiff; he was not even tendered for cross-examination on behalf of the defendants other than those who examined him. His evidence is also not useful to the appellants.
(23) The Commissioner discussed the several items of claims put forward by the plaintiffs, disallowed some and allowed the rest: he found as follows:
'THEtotal amounts embezzled and misappropriated jointly by defendants 1 & 5 as per my findings above amounts to Rs. 11,00,732/11/6. Out of this embezzled and misappropriated amount, the plaintiffs are entitled to a credit of Rs. 1,83,455/7/3 and defendant No. 9 is entitled to a credit of Rs. 1,83,455/7/3 as 1/6th the share each. The defendants I to 8 are liable for the payment of these amounts to the plaintiffs and defendant No. 9. The balance of the amount represents the credit share of defendants 1 to 8. 'The total amounts embezzled and misappropriated by the defendants No. 1 and 2 come to Rs. l,29,982/2.00. Out of this embezzled and misappropriated amount, plaintiffs are entitled to a credit of Rs. 21,663/8/8, defendants 5 to 8 are entitled to a credit of Rs. 21,663/8/8 and defendant No. 9 is entitled to a credit of Rs. 21,663/8/8. The defendants I to 4 are liable for the payment of these amounts to the plaintiffs, the-defendants 5 to 8 and defendant No. 9. The balance of the amount represent the credit share of defendants I to 4.'
(24) In this context it will be helpful to refer to a few details of the compromise which was recorded by S. N. Andley, J. The petition for recording the compromise, signed by the plaintiffs and defendants I to 4 and 9, specifically refers to this court having issued notices to defendants 5 to 8 and setting them ex parte after publication in the newspapers and to the decision of the Supreme Court dated 2-12-1966. The fact of the decision of the Supreme Court was not kept back from S. N. Andley, J. when he recorded the compromise decree, as it was at one time feebly suggested. There is no basis either for the argument that a final decree had been directed to be passed by S. N. Andley, J. not in accordance with what the Supreme Court had done, but only as per the decree of the Punjab High Court without the aforesaid directions given by the Supreme Court.
(25) Shri Rameshwar Dial did not rightly go to the length of contending that the appointment of the Commissioner and the final decree proceedings (which were not stayed) prior to the decision of the Supreme Court, were invalid.
(26) It does not seem possible, thereforee, for defendants 1 to 4 who were consenting parties to the compromise, to attack the judgment of S. N. Andley, J. dated 14-8-1968 recording the said compromise and directing a final decree to be drawn up in terms of the compromise against defendants I to 4 (it was passed as per the Commissioner's report against defendants 5 to 8).
(27) When the question came up before us on a former occasion [F.A.O. (O.S.) 13 of 1972] after dismissal by P. N. Khanna, J. of the application to set aside the ex parte decree dated 14-8-1968 against defendants 5 to 8, we considered that there was really no need to set aside the ex parte decree passed against defendants 5 to 8 for, in the view then submitted to us, to the extent the Commissioner's report was contrary to any direction given by the Supreme Court, it would be the duty of this Court (after notice to defendants 5 to 8 also) not to give effect against defendants 5 to 8 to anything in the Commissioner's report contrary to any direction given by the Supreme Court. We made it expressly clear that in saying so we were not reopening the compromise between the plaintiffs on one side and defendants I to 4 and 9 on the other, for they were at liberty to compromise as they insisted.
(28) In giving the above direction we were thinking of appeals from preliminary decrees being different from appeals from decrees in suits which do not involve the passing of a final decree. A decree may be partly preliminary and partly final and the suit, especially one for partition, cannot be said to be finally disposed of till all the questions have been finally determined between the parties. In special circumstances the passing of even more than one final decree in the same suit may be necessitated. In a suit for partition the Court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property, the property to be divided. The preliminary decree determines the shares of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters, in addition to the shares of the parties, that have to be considered and decided before an equitable and final partition can be effected. They would include all questions of accountability between the parties, the distribution of the profits in the properties realised pending the suit etc. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order 20, Rule 18 Civil Procedure Code does not prohibit the Court from issuing such directions after the stage of a preliminary decree even in a case where the plaint itself does not expressly ask for such relief. It is open to the Court, to prevent multiplicity of litigation and to do complete justice and affect an equal division of all the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits, under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree and in either case the result of the enquiry has to be incorporated in the final decree.
(29) In Babburu Basavayya v. Babburu Guravayya A.I.R. 1951 Mad 938 (7) a Full Bench of the Madras High Court explained the above features of a partition suit as well as the scope of Order 20, Rules 12 and 18 Civil Procedure Code The distinction between three types of cases, in which a question of profits or mesne profits might arise, was explained: (1) suits for ejectment or recovery of possession of immovable property from a parson without title with a claim for past or past and future mesne profits; (2) suits for partition by one or more tenants-in-common against others with a claim for account of past or past and future profits, and (3) suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defendant, not being lawful, the plaintiff is entitled to recover mesne profits; in the second case, the possession and receipt of profits by the defendants not being wrongful, the plaintiffs' remedy is to have an account of such profits; in the third case, the state of the family on the date of the partition is material and the parties are not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. Order 20, Rule 12 Civil Procedure Code . deals with the first type of suits while Order 20, Rule 18 deals with the second and third categories. The preliminary decree in this case had directed the taking of accounts under Order 20, Rule 18 Civil Procedure Code . Basavayya held that even in the absence of a claim for future mesne profits and the preliminary decree being silent about it, it is open to the Court to give appropriate directions either suo motu or on the application of the parties even after the date of the preliminary decree.
(30) In the same volume yet another decision of a Full Bench (Sivaramachari v. Bayya Anjaneya Chetty) has been reported at page 962. (8) Rajamannar, C.J. Who was a member of the Full Bench in Basavayya, speaking for the Full Bench, observed as follows :
'IN my opinion, the case of an appeal from a preliminary decree stands on an entirely different footing from the other classes of appeals against interlocutory orders in the same suit and from appeals against decrees in other suits. An appeal against a preliminary decree is as much an appeal against the final decree also, as the only final decree which can be executed would be the final decree as affected by the decision of an appellate Court or by the decision in an appeal against the preliminary decree'.
(31) In a later decision of the same Court in Varatharajulu Reddiar v. Venkatakrishna Reddiar I.L.R. 1967 Mad 136 (9) it was pointed out that the Civil Procedure Code did not preclude the passing of more than one final decree and itself contemplated the possibility of a composite decree, that is, a decree partly preliminary and partly final. The decision of the Calcutta High Court in Jashoda Dasee v. Upendra Nath 1918 44 I.C. 671 (10), where it was found necessary to have a supplementary final decree dealing with what was left undisposed of in the earlier final decree, the suit being one for partition, was followed. The test concerning the need for anything further being done was propounded in the following terms by Natesan, J.:
'HASthere been a final adjudication of the rights of parties dividing the properties by metes and bounds and declaring the respective rights of the parties in particular properties duly identified or identifiable if execution becomes necessary The question, we have to ask ourselves, is whether the suit has been finally disposed of or has something .further to be done in the suit itself to specify the rights of parties'.
(32) Agarwala, J., speaking for a Division Bench of the Allahabad High Court in Ramesh Chandra v. Seth Ghanisham Das : AIR1955All552 (11) observed as follows :
'IT is final when such adjudication completely disposes of the suit. The final decree, thereforee, merely carries into fulfillment the preliminary decree passed in the suit. If an appeal from the preliminary decree succeeds, the final decree automatically falls to the ground for the reason that it is based upon the preliminary decree and is merely a superstrucure upon it which must fall when the base is taken away'.
(33) It well be convenient at this stage to notice briefly the properties that were allotted in so far as it is relevant for one purpose to plaintiffs 1 to 4 and defendants 1 to 9 by the Commissioner in his report and as provided in the compromise entered into between the ptaintiffs 1 to 4 and defendants 1 to 4 and 9. In addition to the three shops and Balakhanas at Mohindergarh, Bara Nohra at the back of big Haveli at Bhiwani (items 7 and 14 of plaint scheduled) as well as shop No. 55/56 at Delhi (item I of plaint schedule) were alotted to defendants 1 to 4 subject to a defeasance clause. In respect of the three shops and Balakhanas at Mohindergarh defendants 1 to 4 were to pay a sum of Rs. 55000.00 to the plaintiffs, within one year from the date of the final decree, failing which the plaintiffs 1 to 4 will be the absolute owner of the other two items (No. 7 and 1 of plaint schedule) and would not be given item 14 of the plaint schedule if the said sum was not paid within the aforesaid period. The big Haveli at Bhiwani and one shop with Balakhana at Bhiwani were both allotted to defendants 5 to 8 by the Commissioner; according to the compromise, however, either these two properties will be got transferred by the plaintiffs from defendants 5 to 8 to defendants 1to 4 or plaintiffs and defendant No. 9 will transfer the right to realise Rs. 1lakh in favor of defendants 1to 4 against defendants 5 to 8 from the decree for Rs. 4,10,238.00 in favor of the plaintiffs and defendant No. 9 against defendant Nos. 5 to 8 (as per the Commissioner's report). Since defendants 5 to 8 did not join the compromise and the plaintiffs did not get those properties transferred according to the above said compromise from defendants 5 to 8 to defendants 1 to 4 this clause, as was observed by Dalip Kapur, J., had really become ineffective and hence has not been incorporated in the decree sheet as prepared as per his directions.
(34) The Commissioner had made the following provisions for payment of money in the final decree.
(A)Decree against defendants I to 8 for payment to plaintiff : Rs. 1,83,455/7/3 and a decree against the same person for a similar amount for payment to defendant No. 9, making a total of Rs. 3,66,910/14/6 to be paid in favor of both plaintiffs and defendant No. 9 by defendants 1 to 8. (b) Decree against defendants 1 to 4 for payment of Rs. 21,663/8/8, to plaintiffs and a similar decree against the same persons for a similar amount for payment to defendant No. 9 making a total of Rs. 43,327/1/4.
(35) According to the compromise (clauses C and D) Rs. 4.10.238.00 was to be realisable from defendants 5 to 8, not from defendants 1 to 4. Dalip Kapur, J. has found (1) that no money decree can be passed against defendants I to 4, and (2) that the liability of defondants 5 to 8 to the plaintiffs and defendant 9 would be Rs. 1,83,455/7/3 (plaintiffs half and defendant No. 9 half). Defendants 1 to 4 are not aggrieved by both these directions.
(36) The decree sheet, as has been prepared by the office in pursuance of the directions of Dalip Kapur, J., provided for defendants No. 5 to 8 paying Rs. 91,727.73 p to the plaintiffs and an equal sum to the defendant No. 9. The decree, as drafted, also provided for this payment being made within one year from the date of the above said compromise i.e. from 14-8-1968, not the date of drafting of the final decree in pursuance of the directions of Dalip Kapur, J.
(37) Under Order 20, Rule 7 Civil Procedure Code the decree shall bear the date on which the judgment was pronounced. The judgment, passing the final decree in this case, by S. N. Andley, J. was passed on 14-8-1968. So far as the parties to the compromise are concerned they could not, in any case, be heard to say that the time of one year given by the said compromise was to run not from that date but from the date when the final decree has been drawn up in pursuance of Dalip Kapur, J.'s directions (in the year 1973). At least at this stage the appellants (defendants I to 4) cannot object to the decree mentioning the date 14-8-1968 in ..his context. The office cannot itself interpret the decree; nor can this Court at this stage give directions for drafting the decree by way of interpreting the judgment of S. N. Andley, J. and under the guise of such interpretation direct a date, other than that required by Order 20, Rule 7 Civil Procedure Code ., being mentioned. Any question of interpretation of the judgment, if it arises, and on which we express no opinion, must be left to the stage of execution of the decree.
(38) It seems plain that defendants 1 to 4, who are parties to the compromise cannot be allowed to derogate from whatever terms were agreed upon expressly. They had compromised, for reasons best known to themselves, after the Supreme Court had decided the appeal and had given the above directions. We are not impressed by the contention, which has been put forward on their behalf, that there is any variance in the way in which the decree has been drafted from the compromise which gives them a right to appeal against such variance ; nor have we been impressed by the argument, on their behalf that the judgment and decree of Andley, J. was a nullity, on the ground of his having passed a final decree pursuant to the preliminary decree of the High Court alone but not as modified by the Supreme Court. It may seem that the factual basis for this argument is absent, the compromise petition having expressly referred to the decision of the Supreme Court.
(39) Advantage was, however, sought to be taken by defendants 1 to 4 of the observation of Dalip Kapur, J. that it was impossible to draw up a final decree in accordance with the compromise as well as in accordance with the Commissioner's report to contend that there is variance in the decree as drafted under Dalip Kapur, J.'s directions as was mentioned in the Commissioner's report. It was found by the Commissioner and also mentioned in the compromise that a sum of Rs. 4,10,238.00 had become payable to plaintiffs and defendant No. 9 by defendants I to 8 jointly and severally. Dalip Kapur, J. had found that no money decree could be passed against defendants 1 to 4 but the liability of defendants 1 to 8 qua the plaintiffs and defendant No. 9 could be Rs. 1,83,455/7/3. The defendants 1 to 4 have no grievance, nor is any expressed, against the above direction given by Dalip Kapur, J. and the drafting of the decree in pursuance of the said direction. Despite the Commissioner's report or even the directions of the Supreme Court it was open to defendants 1 to 4 to compromise in any manner they pleased with plaintiffs 1 to 4 and defendant 9. Once they entered into a compromise any attack on the compromise and the final decree based on the said compromise seems futile.
(40) There is perhaps one aspect which requires some Explanationn. The two directions given by the Supreme Court, it may be recalled, were (1) that in partitioning the properties the Commissioner will debit for the period for which the arrangement (of 14-7-1942) remained in operation against each branch amounts which were debited to it in the books of accounts of the firm Ramnarain Gokalchand at Delhi; (2) between Gaja Nand and Girdhari Lal the amount debited to the branch of Sardar Mal will be equally divided.
(41) It has been explained to us that there are only the following entries pertaining to the firm Bhairon Pershad Sardar Mal:
15-7-42 Ex. D-1391 page 1105 for Smt. 1999/2000 expenses shown as . . . . Rs. 27,271-14-6 22-6-44 Ex. D-600 page 559 for Smt. 2000/2001 expenses shown as . . . . Rs. 20,565-5-9 11-7-45 Ex. D-1575 A & B page 801 for Smt. 2001/2 less shown as . . . . . Rs. 5,772-0-0 Total. Rs. 53,609-4-3 For the account of Gokal Chand Kundan Lal the entries are : 4-7-43 Ex. D-1395 page 1847 for Smt. 1999/2000 expensesshownas . . . Rs. 8,391-1-3 22-6-44 Ex.D-1072 page 775 for Samvat 2000/1 expenses shown as Rs. 26,141-0-6 11-7-45 Ex. D-546 A and B page 1079 for Smt. 2001/2 less shown as . . Rs. 5,772-0-0 Total Rs. 40,304-1-9
(42) These were the entries which were made, separately, during the period of about 3 years from 1942 onwards, on the basis of which it may be recalled, a contention was put forth before the trial court- and accepted by it-that the firm had been dissolved even in 1942. While agreeing with the High Court that this view of the trial court was erroneous it had become necessary for the Supreme Court to give directions regarding what should be done with reference to the entries made separately in the accounts crediting or debiting, as the case may be, the respective parties during this period. The Commissioner was directed, in the view that they represent items of expenditure, to give effect to the arrangement, which was in operation for a period of about 3 years, by debiting, for the said period, against each branch amounts which were debited to the account in the name of the firm Ramnarain Gokalchand of Delhi; the amounts debited to the branch of Sardar Mal were to be equally divided between Gaja Nand and Girdhari Lal. The Commissioner having submitted his report prior to the above-said directions the only possible question that could arise is whether any fresh account has to be taken regarding these adjustments. A reference to the above said entries made during the above-said period shows that defendants I to 4 are entitled to a credit of Rs. 13,305/2/6 (deducting the above-said sum of Rs. 40,304/1/9 from Rs. 53,609/4/3) against the plaintiffs and defendants 5 to 9. In view of the compromise between the plaintiffs and defendants 1 to 4 and 9 this claim has been left out. Thus the defendants 5 to 8 were also benefited in this manner to the extent of the share in Rs. 13,305/2/6. These figures were given to us during the course of the arguments by Shri R. L. Aggarwal, learned counsel for plaintiffs I to 4. We also asked Shri Rameshwar Dial whether he could point to any other entry in these accounts which could show a different result or whether he could question the correctness of the above-said figures given to us. He was not in a position to do so. He only contended himself by staling that this could be found out by taking accounts afresh for which, however, we clearly see no need in view of the above factual position.
(43) No appeal having been filed against the Judgment of S. N. Andley, J. (if one could be filed having regard to the same being a court decree) there could be a grievance now only if there has been any variation between the compromise and the decree, as it is now drafted in the event of the same affecting them adversely. Defendants 1 to 4 have failed to show that there is any such variation and for this reason alone their appeal is bound to fail.
(44) Regarding defendants 5 to 8 Shri Rameshwar Dial, who appears for them also, contends that their case would stand on a different footing and that he is entitled to attack the Commissioner's Report on the merits at this stage. We do not agree. Defendants 5 to 8 were ex parte. They did not participate further in the proceedings before the Commissioner after a certain stage inspire of directions having been obtained by the Commissioner for fixing the date on which they should appear on pain of the Commissioner proceeding ex-pane if they did not appear on the said date. Despite the same they did not choose to appear. The plaintiff (Gaja Nand) examined himself before the Commissioner and he was cross-examined at length. Certain items were singled out by him before the Commissioner as representing amounts which had been misappropriated by those in management, namely, defendants 1 and 5, there being no other male adult member of the family who was even capable of managing the family at that time. It is not as if the Commissioner had merely stated that those in management were merely liable to account, regardless of whether the said amounts were actually realised by them, but not brought into account. The Commissioner himself, as already noticed, disallowed several items claimed by Gaja Nand. He, however, gave his finding in the manner extracted above after going into the details of various claims in respeet of amounts misappropriated by those in management. When the Commissioner has chosen to find expressly that those amounts, which he found as being due in the aforesaid manner, were misappropriated it is not permissible to read his report, as a mere matter of construction, as saying that he was not actually finding misappropriation of any moneys by those in management, but ho was merely referring to their accountability in the ordinary sense of that expression.
(45) Support was also sought to be derived from how the Supreme Court had dealt with the contention, which was put forward before it, that Girdhari Lal was liable to account for the amounts misappropriated by him before 2-1-1950. The Supreme Court observed that there was no such issue raised at the trial despite the case. of [ Gokal Chand that Gaja Nand and Girdhari Lal had misappropriated large sums of money and had served a false notice of partition and separate possession of Gaja Nand's share in the property. The Supreme Court observed : 'Since, however, no issue was raised and no evidence was led on that issue the counsel for Gokal Chand cannot ask us to enter into an enquiry that Girdhari Lal had committed misappropriation of joint family funds and was liable to account for the same' Then follow the .observations concerning the fact of Girdhari Lal being liable, in any event, to render accounts after the date of the disruption of the joint family status and those already extracted.
(46) Misappropriations were found by the Commissioner to be proved on the basis of Gaja Nand's evidence, there being no evidence to the contrary. It is too late in the day for defendants 5 to ^ to question that finding of the Commissioner; Defendants I to 4 who had prayed for an ex parte decree against defendants 5 to 8 on the basis of the Commissioner's report cannot attack the said report. There is nothing in the finding of the Commissioner in this regard, which seems opposed to any direction of the Supreme Court. We repeatedly asked Shri Rameshwar Dial to take us through the Commissioner's report for the purpose of pointing out how in respect of any portion of the amount found to have been misappropriated there is no express finding of the Commissioner in support of the said misappropriation. He has been unable to do so. He only wanted to canvass the sufficiency of the material before the Commissioner for supporting the finding of the Commissioner concerning misappropriation of various amounts. It will be sufficient to refer to only one instance to explain how the Commissioner proceeded. The rents of certain properties were not brought into account. Gaja Nand asserted that rents were realised but still not brought into account. It was plainly unnecessary for Gaja Nand to examine every person who during the period paid rents to Girdhari Lal in order to prove his case particularly in the absence of even cross-examination suggesting that all or any of those persons in possession of those properties not paying rents during the aforesaid period. Nether Girdhari Lal nor any one else on his behalf was examined before the Commissioner to deny the receipt of such rents as alleged. In these circumstances the finding of the Commissioner that the said rents were collected by Girdhari Lal and misappropriated by him could not be said to be based on no material whatever.
(47) That part of the decree of S. N. Andley, J. against defendants 5 to 8 based on the Commissioner's report was not a decree without jurisdiction. It was, in other words, open to Andley, J. to pass such a decree in terms of the Commissioner's report against certain defendants who were ex parte. The same could not be said to be a nullity. Even if there is anything erroneous (legally) about the said decree the remedy of defendants 5 to 8 was only to file an appeal-against the said decision or have it set aside in the mode open under law.
(48) We have only to clarify that when we were seized of this matter on a former occasion in F.A.O. (O.S.) 13 of 1972 filed by Girdhari Lal it seemed to us, and his learned counsel also agreed with us that there was no need to set aside the ex parte decree passed against defendants 5 to 8; if all that had to be done was to see that the final decree was drafted after notice to defendants 5 to 8 so that they may also assist in the, matter of the final decree being prepared in a manner consistent with the directions given by the Supreme Court. They were given such an opportunity. By virtue of our directions in F.A.O. (O.S.) 13 of 1972 they were not entitled to anything further; those directions do not enable them to contend that the Commissioner's report itself was based on absence of proper material and that for that reason Andley, J. was not entitled to pass an ex parte decree against defendants 5 to 8 on the basis of the said report of the Commissioner. It seems plain that the above-said stand was taken before us by the learned counsel for Girdhari Lal (Shri Maharaj Kishan) only because he knew that it would not be possible for him to attack the report of the Commissioner or any such ground as it is now urged by Shri Rameshwar Dial on behalf of defendants 5 to 7 and that all that the fifth defendant could hope to have was an opportunity to show that if there was anything in the Commissioner's report which went contrary to the directions of the Supreme Court that should not be given effect to and incorporated in the final decree to that extent.
(49) Dalip Kapur, J. has, at considerable pains, set out the contents of the Commissioner's report and discussed them in the light of the directions of the Supreme Court and in the background of no objections being filed to the Commissioner's report. We have been taken through the judgment of Dalip Kapur, J. and the materials on which his judgment has been based; we were also provided, by both sides, at our request, with detailed analysis and charts concerning the details of the various findings of the Commissioner, the various clauses in the compromise decree and the observations of Dalip Kapur, J. in the background of what the High Court of Punjab as well as the Supreme Court have decided. Having heard both sides fully on the above questions and with the help of such analytical and tabular charts we find that the present attack on all or any of the clauses in the final decree, as it has been drafted, is without any force whatsoever.
(50) As we apprehend the legal position if there is any matter that has not been finally determined, as per the directions of the Supreme Court, it would be still open to the Court under Order 20 Rule 18 C.P.C. to go into any aspect which arises for determination but has been left undetermined. But this is totally different from saying that finality could not attach to whatever has been finally decided between the parties. In the view we take, that if there is any direction in the decree, as it has been drafted, contrary to the direction of the Supreme Court or to the judgment of Andley, J. it would not be valid, we have heard both sides at considerable length and are satisfied that the decree, as drafted, is not contrary to any directions given by the Supreme Court or the judgment of Andley, J.
(51) In the result both the appeals fail and are dismissed with costs.