1. This is an appeal by the third and fourth defendants against the final decree in a suit for partition. The two plaintiffs and the four defendants are the six sons of one Ramakrishna Sarkar. The plaintiffs instituted this suit on the 31st January, 1918 for the partition of what they alleged were joint properties. They also stated that if at the time of trial any other undivided property should be found out, the Court might be pleased to direct a partition thereof. The first two defendants filed written statements in which they made allegations as to the nature of the properties mentioned in the schedule to the plaint. The third and fourth defendants did not enter appearance. On the 18th February, 1919, a petition of compromise was filed on behalf of the two plaintiffs and the first two defendants. This petition stated, with regard to the properties specified, that they were the self-acquired properties of one or other of the parties to the suit. The petition also set out a claim for partition of what was admitted to be joint properties. The third and fourth defendants did not join in this application. Thereupon the following judgment was recorded:
The plaintiffs and defendants 1 and 2 have compromised the suit. Defendants 3 and 4 are absent after service of summons. Claim is proved. The suit shall be decreed on compromise against de-fondants 1 and 2 and ex parte against de-fondants 3 and 4 in a preliminary form for partition. Parties to bear their own costs. At the request of the parties, Babu N.P. Tribedi and Kabiraj Sitanath Sen Gupta are appointed commissioners to effect the partition between the parties according to terms of compromise.
2. When the commissioners proceeded to of foot the partition, the third and fourth defendants objected. Their objection was overruled and a partition was made in accordance with the terms of compromise which had been agreed to by the two plaintiffs and the first two defendants. The propriety of this final decree has been questioned in the present appeal.
3. There is no room for controversy that the preliminary judgment was wrong. There can be no compromise binding upon all the parties to a partition suit until and unless all the parties have joined in the compromise : Gobind v. Bhagbat (1914) 27 I.C. 242. This was overlooked by the legal advisers of the parties and by the Court. But it is not open to the appellants, in an appeal against the final decree to attack the preliminary decree, which might have been directly challenged by an appeal : Loke Nath Singh v. Gaju Sinqh (1915) 20 C.W.N. 178. This course was not adopted by the appellants. The trial Court might also have been invited to vacate that judgment either on an application for review or on an application under Section 151 or Section 153, Civil Procedure Code. That course was not pursued, and the Court below proceeded to make a final decree on the basis of the preliminary decree.
4. We are bound to consider, however, in this appeal, whether the preliminary decree was capable of enforcement, in other words whether it afforded an adequate basis for the final decree as actually made. It is clear that the preliminary decree was made, on the terms of compromise, against the first two defendants. The terms of the decree as between the plaintiffs and the first two defendants are consequently to be gathered from the petition of compromise. As between the plaintiffs and the third and fourth defendants, the decree was made ex parte. The terms of this ex parte decree were not set out in the judgment, and we have been asked to presume that they are identical with the terms set out in the petition of compromise between the plaintiffs and the first two defendants. This is not explicitly stated in the judgment; and it would be absurd to hold that the Subordinate Judge intended to bind the third and fourth defendants by the terms of a compromise to which they had never consented. We are of opinion that the preliminary decree as it stands is indefinite and cannot be carried out. Consequently, the final decree must be vacated.
5. The question next arises, what further direction should be given. The plaintiff's have obtained a preliminary decree which, in the view we have taken, is of no value to them. It is consequently to their interest to have that judgment vacated. That is precisely the course desired by the third and fourth defendants. We therefore set aside the preliminary judgment also. The Subordinate Judge will take up the suit and retry it in accordance with law.
6. The result is that this appeal is allowed, the decree of the Court below discharged, and the suit remanded for retrial de novo. There will be no order for costs up to this stage as both the parties are responsible for the difficulties that have arisen.