Banerjee and Rampini, JJ.
1. These two appeals arise out of a suit for partition of certain joint property, Appeal No. 775 being a second appeal from the preliminary decree for partition, and Appeal No. 840 being a second appeal from the final decree made in the suit.
2. The questions raised by the learned Vakil for the defendant-appellant are, first, whether the application for review of judgment made after the dismissal of the suit for default was not barred by limitation, and whether the subsequent proceedings in the suit were not therefore altogether null and void; second, whether, on the pleadings, the learned Judge below should have gone into the question as to whether Arannagore was joint property; and, third, whether on the facts found, the tank referred to in the judgment ought not to have been kept joint.
3. Upon the first question it is argued that as the suit was originally dismissed under Section 102 of the Code of Civil Procedure for default on the part of the plaintiff, his proper course was to make an application for setting aside the order of dismissal under Section 103: that the Court had no power to entertain an application for review of judgment under Section 623 in respect of an order of dismissal under Section 102; and that as at the time when the application in question was made, the time for making an application under Section 103 had expired, the plaintiff cannot derive any benefit by asking the Court to consider his application made under Section 623, as one under Section 103; and in support of this contention the case of Koilash Mondol v. Nabadwip Chandra Ear (1896) 2 C.W.N., 318, is cited. It is further argued that if the application for review was not entertainable, and if the time for making an application under Section 103 had expired, the order dismissing the suit ought to stand, and the subsequent proceedings in the case ought to be set aside as being null and void. This point does not appear to have been raised in either of the Courts below.--But as it is a point of law which touches the legality of the whole of the proceedings we allowed it to be raised on second appeal. We are, however, of opinion that this contention ought not to prevail. It is quite true that the case cited is authority for the proposition that where a suit is dismissed under Section 98, no application for review of judgment under Section 623 of the Code of Civil Procedure can be entertained against the order of dismissal. But in the present case the dismissal was one not under Section 98, but under Section 102 of the Code of Civil Procedure; and the difference between the two sections, so far as the present point is concerned, is this, that whereas Section 98, which applies to the case of neither party appearing, provides that 'the suit shall be dismissed unless the Judge, for reasons to be recorded under his hand, otherwise directs,' Section 102, which applies to a case in which the defendant appears and the plaintiff does not, directs that the Court shall dismiss the suit unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.' So that, while in regard to cases which come under Section 98 where the Court does not otherwise direct, a dismissal of the suit is the only consequence, and the proviso, 'unless the Judge, for reasons to be recorded under his hand, otherwise directs,' evidently relates to the postponing of the case and not to the making of any final order in it, in cases coming under Section 102, the dismissal of a suit need not be the only final order which the Court can make, but a partial decree might be passed in some cases; and therefore, whilst it would be unreasonable to say that there may be an application for review of judgment in a case coming under Section 98, because, there is no judgment, neither party having appeared before the Court, and the Court having simply dismissed the suit, it cannot be said that it would be equally unreasonable for the plaintiff, in a case coming under Section 102, to apply for review of judgment under Section 623, for it may be open to him to show that the partial decree, which the Court has made upon the defendant's admission, gives him less than the Court ought to have given upon that admission, and that upon that ground he is entitled to have the judgment reviewed. We are, therefore, of opinion that the reason for the decision in the case of Koilash Mondol v. Nabadwip Chandra Ear (1896) 2 C.W.N., 318, does not in its integrity apply to a case like the present. The argument based on the ground of the unreasonableness and unmeaningness of an application for review of judgment, is, in our opinion, strictly applicable only to an order of dismissal made under Section 98 of the Code of Civil Procedure and does not apply equally to an order of dismissal made under Section 102.
4. We may observe that in the present case in which the suit was one for partition, there was, if not very clear and express, at least an ambiguous and implied admission that some of the properties of which partition was claimed were joint properties, so that it cannot be said that an application under Section 623 was altogether not entertainable in this case. The first contention of the appellant, therefore, in our opinion, fails.
5. As to the second contention, the argument is that upon the facts stated in the plaint the question whether Arannagore was joint property did not arise. But the learned District Judge has in his judgment explained the circumstances under which he allowed that question to be raised. He observes: Much has been made, of the omission in the plaint to specifically mention the exclusion '(that is of the property Arannagore).' It must be remembered that the plaintiff was an of man at death's door, and I think allowance must be made for his having give imperfect instructions for drawing the plaint.' That being so, we cannot be effect to the second contention raised before us.
6. As to the third contention there is no doubt some hardship in the defendant's proprietorship of the tank being subjected to a right of user of the ghat and the water by the plaintiff, but the existence of this hardship has been taken into consideration, and it is in view of this circumstance that the amount payable to the plaintiff by the defendant has been reduced by the Lower Appellate Court.
7. We do not therefore think that any ground has been made out for our interference with the judgment of the Lower Appellate Court. We accordingly affirm it, and dismiss Appeal No. 840 with costs. That being so, Second Appeal No. 775 will also be dismissed.