1. The decision under appeal was passed in a suit brought for partition by four minors against the 1st defendant, their father, certain females whose positions it is not necessary to specify, and the 7th to 18th defendants, persons who held money decrees, some of them against the 1st defendant alone, others against the 1st defendant and the plaintiffs, all obtained on debts incurred by the 1st defendant.
2. The decision of the lower Court is in terms that the suit is bad for misjoinder of causes of action and that defendants 7 to 18 are not proper parties. There is nothing else. The lower Court does not say that it removes them from the record; it does not say that the suit is dismissed as against them. But it is agreed before us and from the tenor of the remainder of the order it is clear, that under Order I, Rule 10 the names of these defendants were struck out, as being improperly joined.
3. It is objected that no appeal lies against such a decision and certainly none is provided directly in the Code and as the lower Court's decision, understood in the manner in which we understand it, is not a decree, and is not a conclusive determination of the rights of the parties with regard to any of the matters in controversy and does not come within the definition of 'decree' in Section 2(2), there can be no appeal against it directly. In these circumstances the appeal as such must fail.
4. In view, however, of the facts of the case, to which further reference will be made, we have felt it our duty to consider whether we should not interfere in the exercise of our powers of revision. No doubt we should not be justified in such interference on the sole ground that the lower Court had made a mistake in law; but here we think that it has done more than that. For it has entirely misunderstood the nature of the judicial discretion, which it was called upon to exercise. This is clear, when reference is made to the grounds of its order; for it has held firstly that, as on, the authority of Ramakrishna Aiyar v. Krishna Iyer (1907) 18 M.L.J 85 debtors to a family should not be made parties to a suit for partition, therefore creditors also should not. On the assumption that the decision cited is correct, the consequence in our opinion does not follow. Then secondly it has relied on the fact that none of defendants 7 to 18 has any interest in the cause of action, which the plaintiffs have against any other 'of these defendants, as though that were sufficient to exclude the case from Order 1, Rule 3. The real question we have to decide is in fact whether Order 1, Rule 3 is applicable to such pleadings as those before us. We first have to bear in mind what the lower Court appears to have entirely disregarded, that partition is the occasion for a comprehensive settlement of the extent of the family estate available for division and of the deductions which have to be made from that estate on account of family liabilities. This is clear with reference to the definition of the scope of partition suits to be gathered from Rules 221, 223 and 224 of the Civil Rules of Practice. Next another fact, of which the lower Court has lost sight, is that the claims of each of these defendants have been subjected to objection in the plaint on general and similar gounds. In paragraph 7 there is the allegation that the 1st defendant the father has ruined himself in immoral ways by concubines and the use of intoxicants and for that purpose he has been wrongfully wasting the family properties. In paragraph 8 it is alleged that some of the alienations are fraudulent transactions brought about by the 1st defendant in collusion with defendants 3 to 18, who are his intimate friends in connection with his immoral acts. And in paragraph 8(a) reference is made to decrees obtained by the 9th and 10 defendants against the 1st defendant and by defendants 11 to 18 against the 1st defendant and the plaintiffs and there is an allegation that, as the minor plaintiffs were not properly represented in the connected suits, those decrees are fraudulent and cannot bind the said minors, and the debts claimed by the aforesaid persons are not genuine and. even if genuine, were not contracted for family necessity or benefit, but were contracted only for the 1st defendant's immoral expenses. In these circumstances it is clear that the attack on the debts apparently due to these defendants must proceed to a large extent, if not entirely, on one basis as against each of them. We think that the lower Court ought to have considered these aspects of the case; and having considered them we think that Order 1. Rule 3 is applicable and that if the lower Court had considered them it would have been bound to apply OrderI. Rule 3. We may observe that the joinder of such pleas in partition suits is not in our experience unusual in this Presidency. Certainly it is entailed by compliance with the Rules of Practice already referred to and the inadvisibility of a partition suit being disposed of in the absence of creditors who might reopen the whole question on the morrow of a decision that certain debts and charges were not properly charged upon the whole family estate with the result that the same question would have to be tried twice over, with results probably discordant, is recognized in Tara Chand v. Reeb Ram (1866) 3 M.H.C.R. 177.
5. Two other points have been suggested on behalf of one or other of the creditors. Firstly, it is urged that the suit offends against Order 11, Rule 4, because it is a suit in effect for the recovery of immoveable property and no other cause of action such as is involved in the claim for the setting aside of the 7th to 18th defendant's decrees as collusive should be joined with it. One possible answer is that these are claims, in which the reliefs sought are based on the same cause of action and another possible answer is that in case the leave of the court is asked for, as the wording of the Rule implies that it can be asked for, that leave may be given. The other point taken was that the relief, consisting in the setting aside of decrees of Court, could not be asked for in the present suit which was filed in the court of the Subordinate Judge of Ramnad, because one at least of these decrees was obtained in the Tinnevelly District Court and in any. case that decree could be set aside on the ground of fraud only by the Court, in which it was passed. This was not considered or apparently put forward in the lower court and it may be necessary for the lower court to deal with it, after framing a proper issue on it. We do not wish to anticipate the conclusion which the lower court may come to and we will only point out that in some cases at least the defendants concerned have attached property within the jurisdiction of the Ramnad Subordinate Judge's* Court and it may be a question whether that court will not in the circumstances be entitled to deal with the present claim in respect of the decrees, under which those attachments have been made.
6. The result is that in the exercise of our powers of revision we set aside the lower Court's order and direct it to proceed with the trial of the suit with defendants 7 to 18 as parties Costs in this Court will be costs in the cause and will be provided for in the decree of be passed by the lower Court. The costs will be calculated only on the scale appropriate to a revision petition.