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A.V.S. Sathappa Chetty and anr. Vs. S.N. Subramanian Chetty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad214
AppellantA.V.S. Sathappa Chetty and anr.
RespondentS.N. Subramanian Chetty
Excerpt:
- .....stand dissolved from 20th december 1921, that accounts should be taken of the amount due to the suit partnership from defendants 3 and 4, by reason of mistakes, etc., alleged to have been committed by defendant 3 during his agency in the said partnership firm and of the amount due to the plaintiff's firm. paragraph 3 directs the plaintiff to file a statement of charges against defendant 3. paragraph 4 states that defendants 3 and 4 do within one month from the date on which the plaintiff files into court his statement of. charges, file their answers and explanations thereto. paragraph 5 refers to the appointment of a commissioner for the above purpose with power to record evidence and do all lawful acts in the matter and para. 6 refers to his remuneration. then we have got this.....
Judgment:

Ramesam, J.

1. These miscellaneous appeals arise out of a preliminary judgment and decree passed by the Subordinate Judge of Sivaganga in O.S. 19 of 1917. That suit was for dissolution of a partnership, for taking accounts and for the appointment of a receiver. The suit was originally disposed of by the Subordinate Judge on 31st March 1919, on the ground that it was barred by limitation. The plaintiff appealed to the High Court and the High Court, reversing the judgment of the Subordinate Judge held that the suit was not barred by limitation and remanded the suit for the passing of a proper preliminary decree. This was on 7th October 1921. Leave [Vide A.I.R. 1922 Mad. 510-Ed.] was granted to the defendants to appeal to His Majesty in Council and that appeal terminated only very recently on 14th February 1927, [Vide ] in which the judgment of the High Court was confirmed. But long before the decision by the Privy Council the Subordinate Judge passed a preliminary judgment and a preliminary decree on 13th December 1921. On that occasion only the plaintiff's vakil was present. Neither the defendants nor their vakil were present in Court. The defendants then presented an application on 21st June 1925, for setting aside the ex-parte preliminary judgment and the decree on the ground that they were not aware of the decree and that they thought that as the subject-matter was under appeal to His Majesty in Council, the Subordinate Judge would not deal with it. The Subordinate Judge now finds that it is true that they were not aware of the preliminary decree passed on 13th December 1921. He further finds that there is no excuse for the defendant's non-appearance on that day and refused to set aside the ex-parte order and dismissed the petition. C. M. A. 49 of 1926, was filed by defendant 1, and C. M. A. 50 of 1926, by defendants 3 and 6, the points arising in both being the same.

2. The only object in filing these appeals seems to be that the defendants have an apprehension that on account of the form of the preliminary decree certain points originally arising in the case and which were the subject-matter of issues 13 to 16, would be excluded from future consideration. These issues raise the question of plaintiff's liability in respect of some matters connected with the partnership and they were not considered by the original Subordinate Judge who disposed of the case as being barred by limitation. For a proper disposal of the case they have to be considered. In the revised preliminary judgment the Subordinate Judge says:

Following the direction of the High Court I pass a preliminary decree to the following effect.

3. He declares that a partnership existed that accounts were regularly kept and that the plaintiffs were entitled to have the said partnership dissolved, and that the partnership do stand dissolved as from the said date 20th December 1921. Then comes the decretal portion consisting of six clauses, to the effect that the partnership should stand dissolved from 20th December 1921, that accounts should be taken of the amount due to the suit partnership from defendants 3 and 4, by reason of mistakes, etc., alleged to have been committed by defendant 3 during his agency in the said partnership firm and of the amount due to the plaintiff's firm. Paragraph 3 directs the plaintiff to file a statement of charges against defendant 3. Paragraph 4 states that defendants 3 and 4 do within one month from the date on which the plaintiff files into Court his statement of. charges, file their answers and explanations thereto. Paragraph 5 refers to the appointment of a commissioner for the above purpose with power to record evidence and do all lawful acts in the matter and para. 6 refers to his remuneration. Then we have got this sentence the further consideration of the suit be adjourned to 20th January 1922.'

4. It is apprehended that this decree may be construed as dealing with all the matters which form the subject-matter of the suit and that they will be precluded from raising the subject-matter of issues 13 to 16, hereafter. The last sentence of the decree that the suit is adjourned to 20th January 1922, shows that the Subordinate Judge himself considered the suit as having been partially disposed of and that something more remained to be considered on 20th January 1922. There is no express statement in the preliminary judgment or decree that no other master remains to be considered. The direction was that the plaintiff should file his statement of charges within one month from the date of the order and from that date the defendant is given another month to file his answers. Thus these two matters take up nearly two months (i. e.,) up to February and the fixing of 20th January 1922, would not have been for the purpose of considering these charges and answers. Obviously it could not have been for a consideration of the commissioner's accounts. The only possible inference that can be drawn from the Subordinate Judge's order is that he adjourned the case to 20th January 1922, for a consideration of other matters, arising in the suit not covered by the direction in Clause 2 about accounts being taken of two items. These and other matters apparently require evidence. He took this course probably because he thought that the defendants were misled by the fact that the proceedings were still pending in the Privy Council, and if their vakil was present the matter could surely be fully dealt with.

5. It is admitted by both the parties that after this preliminary decree of 13th December 1921, nothing further has happened. No fee was paid into Court by the plaintiff for the purpose of paying the commissioner and no commissioner took the accounts and on or within 13th January 1922, no statement was filed; Apparently the parties thought that they should await the Privy Council decision for further attention to be paid to the case. This seems to be the proper interpretation of the order of the Subordinate Judge. In these circumstances it is unnecessary for us to interfere with the order of the lower Court or to consider the further question whether any excuse was made out for the non-appearance of the defendants on 13th December. In these circumstances we make no order as to costs.


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