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PETITIONER: BANARSI DAS

       Vs.

RESPONDENT: SETH KANSHI RAM & OTHERS(and Connected Appeals)

DATE OF JUDGMENT: 17/12/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. IMAM, SYED JAFFER SUBBARAO, K. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR 1165            1964 SCR  (1) 316  CITATOR INFO :  RF         1991 SC1020  (13)

ACT: Limitation-Date   of   dissolution   of   partnership-Indian Limitation   Act,   1908  (9  of  1908),   Art.   106-Indian Partnership  Act,  1932  (9 of  1932),s.  43-Code  of  Civil Procedure, 1908 (Act 5 of 1908), 0.20, r. 15.

HEADNOTE: The plaintiff filed a suit against his brothers who had for- merly constituted a joint family for a declaration that  the partnership which had been formed by them after they  ceased to  be joint in respect of a sugar mill stood  dissolved  on May 13, 1944, on which date one of the brothers had filed an earlier  suit  for  dissolution  of  the  partnership.   The earlier suit had been dismissed for default. The  plaintiff in the present suit also prayed for a  decree for  accounts  from defendants I and 2 as well  as  for  the appointment  of  a Receiver.  The trial  court  decreed  the suit,  ordered winding up and appointed a Commissioner.   It also  directed  the accounts prayed for.   Before  the  High Court  Kanshi Ram who had not filed a written statement  and against whom the proceedings in the trial court had been ex- parte  contended that the suit was barred by limitation  and in  any event he should not be called upon to account.   The plaintiff  contended that the suit was one for  distribution of  the  assets of a dissolved firm and was  not  barred  by limitation.  The High Court while noticing that the plea  of limitation taken by one of the parties was raised before  it for  the  first  time, held that by reason of s.  3  of  the Limitation  Act  it was bound to take notice of the  bar  of limitation  and dismissed the suit.  Having  decided  Kanshi Ram’s  plea the High Court passed consequential orders  with regard  to the several appeals by the other defendants.   On appeal  it was contended in this Court that the question  of limitation  which  was  not raised even in  the  grounds  of appeal  before the High Court was a mixed question  of  fact and law and it should not have been entertained by the  High Court. Hold,  that the suit for dissolution filed on May 13,  1944,

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had ended in a dismissal for default, and as such no date  317 of  dissolution of the partnership as contemplated by  0.20, r. 15, of the Code of Civil Procedure had been fixed by  the Court;  the  plaint  could not be construed  as  the  notice contemplated  by s. 43 of the Partnership Act, to  terminate the  partnership.  Even on the assumption that  the  summons accompanied by the plaint could be said to be the service of notice  for  dissolution  of the partnership,  the  date  of dissolution could only be the date on which the last of  the partners was served.  With all these questions of fact to be investigated,  the  High  Court had committed  an  error  in treating the question of limitation as purely one of law and allowing  it to be raised at the hearing for the first  time before  it, at the instance of a party who had not  filed  a written statement and raised an issue on the question before the trial court.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 94 to 97 of 1960. Appeals from the judgment and order dated March 15, 1956, of the’  Allahabad High Court in First Appeals Nos.  172,  364, and 379 of 1954. Veda Vyasa, R. K. Garg, D. P. Singh, Shiv Shastri and K.  K. Jain,  for  the  appellant (in C. As.   Nos.  94-96/60)  and respondent No. 2 (in C. A. No. 97 of 1960). Rameshwar  Nath,  S.  N. Andley and P.  L.  Vohra,  for  the appellant  (in C. A. No. 97/60) respondent No. 2 (in  C.  A. No.  94/60)  and respondent No. 1 (in C. As-.  Nos.  95  and 96/60). K.   L.  Gossain and Sohan Lal Pandhi for respondent  No.  1 (in  C. As.  Nos. 94 and 97/60) respondent No. 2 (in  C.  A. No. 95 of 60) and respondent No. 4 (in C. A. No. 96/60). Harbans Singh, for respondent No. 3 (in C. A. No. 94/60). J.   P. Agarwal, for respondent No.  4 (in C. A. No.  94160) respondents No. s. 3 and 4 (in C. A. No. 95/60)  respondents Nos.   I and 3 (in C. A. No. 96/60) and respondents  Nos.  3 and 4 (in C. A. No. 97/60). 318 1962.  December 17.  The judgment of the Court was delivered by MUDHOLKAR,  j.-These are appeals by certificates granted  by the  High Court of Allahabad under Art. 133 (1) (c)  of  the Constitution  from its judgments dated March  15,1956.   The relevant facts are briefly as follows : The  plaintiff Kundanlal and the defendants 1 to  5  Banarsi Das,  Kanshi Ram, Kundan Lal, Munnalal, Devi Chand and  Sheo Prasad  are brothers and formed a joint Hindu  Family,  till the year 1936.  Amongst other properties the family owned  a sugar  mill at Bijnor in Uttar Pradesh called  "Sheo  Prasad Banarsi  das  Sugar  Mills".  After the  disruption  of  the family the brothers decided to carry on the business of  the said  sugar  mill as partners instead of as  members  of  -a joint  Hindu Family.  The partnership was to be at will  and each of the brothers was to share all the profits and losses equally.  The mill was to be managed by one of the  brothers who  was  to be designated as the managing partner  and  the agreement arrived at amongst the brothers provided that  for the year 1936-37, which began on September 1,1936, the first defendant Banarsi Das, who is the appellant in Civil Appeals 94  to  96  of 1960, was to be the  managing  partner.   The agreement  provided  that for subsequent  years  the  person

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unanimously nominated by the brothers was to be the managing partner  and  till such unanimous nomination was  made,  the person functioning as managing partner in the previous  year must  continue.   For the years 1941-44, Kundanlal  was  the managing partner.  On May 13,1944, Sheo Prasad defendant No. 5  now deceased, instituted a suit in the court of the  Sub- ordinate  judge,  First Class, Lahore,  for  dissolution  of partnership    and rendition of accounts             against Kundanlal and joined the other        brothers as defendants to the suit, In the course of that  319 suit the court, by its order dated August 3,1944,  appointed one Mr. P.C.Mahajan, Pleader, as Receiver but as the parties were dissatisfied with the order the matter was taken up  to the  High  Court in revision where they came to  terms.   In pursuance  of  the agreement between the  parties  the  High Court  appointed  Kanshiram  as Receiver  in  place  of  Mr. Mahajan  as  from  April  5,1945.   In  the  meanwhile,  the District  Magistrate,  Bijnor took over the mill  under  the Defence  of India Rules and appointed Kundanlal and his  son to  work the mill as agents of the U. P. Government for  the year 1944-45.  This lease was renewed by the Government  for the  year 1945 46.  On August 28,1956, the  parties,  except Devi  Chand,  made  an application to the  Court  at  Lahore praying  that the Receiver be ordered to execute a lease  in favour of Banarsidas for a period of five years.  It may  be mentioned  that this application was made at the  suggestion of  the District Magistrate; Bijnor.  The Subordinate  Judge made  an  order in terms of the application.   In  September 1946, Banarsidas obtained possession of the mill.  It may be mentioned  that Sheo Prasad had in the meanwhile applied  to the court for distribution amongst the erstwhile partners of an  amount  of  Rs.  8,10,000/(out  of  the  total  of   Rs. 8,30,000/-) which was lying with the Receiver and  suggested that  the amount which fell due to Kundanlal and  Banarsidas should  be  withheld because they had  to  render  accounts. However,  the aforesaid amount lying with the  receiver  was distributed   amongst-  all  the  brothers   and   Devichand acknowledged  receipt on November 14, 1946.  On October  II, 1947, the Lahore suit was dismissed for default, the parties having migrated to India consequent on the partition -of the country. On November 8,1947, Sheo Prasad instituted a suit before the court  of  Civil judge, Bijnor against his  brothers  for  a permanent  injunction restraining Banarsidas from acting  as Receiver.  The suit, how- 320 ever, was dismissed on March 3,1948.  On July 16, 1948, Sheo Prasad  transferred his 1/6th share to Banarsidas and  since then Banarsidas has been getting the profits both in respect of  his  own  share as well as in respect of  that  of  Sheo Prasad. On October 7,1948, the suit out of which these appeals arise was  instituted  by  Kundanlal  against  all  his   brothers claiming the reliefs set out in para 29 of the plaint.   The reliefs are as follows :               "(a) That it may be declared that the partner-               ship  of  the Shiv Prasad  Banarsi  Das  Sugar               Mills,   Bijnor   between  the   parties   was               dissolved on 13th May, 1944 and if in  opinion               of  the  court  the partnership  is  still  in               existence,   the  court  may  be  pleased   to               dissolve it.  Valued at Rs. 5000.               (b)   That an account be taken from defendants               I and 2 or any of them and decree be passed in

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             favour  of the plaintiff for the  amount  that               may  be  found to be due to the  plaintiff  on               account of his share in the assets and profits               and sums of money in their possession.  Valued               at Rs. 500.               (c)   That a pendete lite interim Receiver may               be appointed for the Seth Shiva Prasad Banarsi               Das Sugar Mills, Bijnor.               (d)   Any other relief which the plaintiff may               be  entitled  against  any or  either  of  the               defendants as the court may deem fit to grant.               (e)   Costs may be awarded to the plaintiff." On  July 30, 1949 , Banarsidas filed his  written  statement but none of the other dependents put in an 321 appearance.   On Decemberl8,1950, an application  which  had been made for the appointment of a Receiver was dismissed on the  ground  that  kanshi  Ram who  had  been  appointed  as Receiver  by  the  Lahore High Court  continued  to  be  the Receiver.   It may be mentioned that during the pendency  of this suit the appellant Banarsidas entered into an agreement with  Devchand  and Kanshi Ram whereunder he took  over  all their rights and interests in the said mill for a period  of five  years  commencing  from July  1,  1951.   On  February 19,1951,  he made an application to the court for  directing Kanshi  Ram to give a lease of the mill to him for a  period of  five  years  commencing from July 1, 1951.   It  may  be mentioned  that under an earlier arrangement Banarsidas  had obtained a lease for a similar term which was due to  expire on  June  30, 1951.  On April 26 1951, one  Mr.  Mathur  was appointed  Receiver  by  the court and in  july  1  951,  he granted a lease for five years to Kundanlal on certain terms which would be settled by the court.  It may be  appropriate to  mention  here  that, issues in the  suit  instituted  by Kundanlal  were framed on December 7, 1951, and one  of  the important  issues was whether the lease dated September  12, 1946,  granted  to  Banarsidas was void ab  initio  or  wits voidable  and in either case what was its effect.  On  April 2, 1954, the advocate appearing for Kundanlal stated that he did not wish to press this issue and that the only  question left was of taking accounts.  In view of this concession  by the  plaintiff, the Court decreed the suit in the  following terms:               "1.  The suit is decreed for declaration  that               the S. B. Sugar Mills, Bijnor, stood dissolved               with   effect  from  13th  May,   1944.    The               plaintiff’s share is declared to be 1/6th;  of               defendant No. 1 Seth Banarsi Das as 1/3rd  and               of defendants 2 to 4 1/6th each.               322               2.    Seth Kanshi Ram is held liable to render               accounts to the plaintiff and other defendants               in  respect of joint stores and lubricants  in               Exhibits I and 7.               3.    Shri  P. N. Mathur shall continue to  be               the receiver till further orders.               4.    And  it is ordered that Shri Kashi  Nath               who is appointed Commissioner for the  purpose               of  winding  up the affairs of the  Mills,  in               this  case,  shall  prepare  accounts  of  the               credits, properties and effects and stocks now               belonging  to the said mills and  then  submit               the report to the court.  After the report has               been   submitted  and  objections  heard   and               decided,  the court would fix a date  for  the

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             sale   of  the  assets  of  the  Mills.    The               Commissioner  shall receive instructions  from               the court from time to time. Three  appeals were preferred before the High Court  against this decision.  One was by Kanshi Ram, another by Banarsidas and  the  third was by Munnalal.  It may be  mentioned  here that the suit has been decreed ex-parte against both  Kanshi Ram  and Munna Lal.  It may also be mentioned that  even  in the  appeals the winding up of the partnership business  and the  appointment of Mr. Kashi Nath as Commissioner for  this purpose  was  not challenged by any party  to  the  appeals. These appeals were heard together and were disposed of by  a common  judgment  by the High Court on March 15,  1958.  The High  Court, in effect, dismissed the appeals of  Banarsidas and Munnalal but granted partially the appeal of Kanshi Ram. As  a result of the High Court’s decision, Kundanlal’s  suit stood decreed for declaration that the partnership  323 should be dissolved with effect from May 13, 1944, and  that the  six brothers had shares in the partnership as found  by the  trial court.  But the suit stood dismissed with  regard to  other reliefs.  As there were three appeals  before  the High  Court,  the appellant Banarsidas has  preferred  three separate appeals for complying with the requirements of  the law. Before  the  High Court the stand taken by the  parties  was this  :  Devichand and Munnalal wanted that the  winding  up order  should  be set aside while Kundanlal wanted  that  it should  be upheld but that he should not be asked to  render any accounts.  Kanshi Ram contended that the suit was barred by time and that at any rate he should not be called upon to account.   The appellant Banarsidas wanted that the  winding up order should be maintained and also wanted that  accounts should  be rendered both by Kundanlal and Kanshi  Ram.   The ground  on which the High Court dismissed the suit was  that the  suit  for  accounts  was barred  by  Art.  106  of  the Limitation Act.  It was, however, contended before the  High Court  on behalf of the plaintiff that although a  suit  for accounts  and  share of profits may be barred by  time,  the suit  in  so far as it related to the  distribution  of  the assets of the dissolved firm was not barred by limitation as such  a suit falls outside Art. 106 of the  Limitation  Act. This  contention was also rejected by the High Court and  it held  that  not only the claim for accounts  and  share  for profits was time-barred but also the claim for  distribution of  the assets of the dissolved firm was  time-barred.   The High Court was alive to the fact that the plea of limitation was  not taken by any of the defendants in the  trial  court but was of the opinion that the plaint itself disclosed that the Suit was barred by time and, therefore, it was the  duty of the court under s. 3 of the Limitation Act to dismiss it. It was then contented before the High Court on behalf of the plaintiff that as in none of the appeals preferred 324 before it the appellants had questioned that portion of  the decree which granted the plaintiff the relief of a share  in the assets of the partnership and therefore it ought not  to be interfered with.  The High Court, however, resorted to O. 41, r. 33 of the Code of Civil Procedure and held that under this provision, it was competent to it to disallow the claim decreed by the trial court.  Upon this view, the High  Court allowed Kanshi Ram’s appeal, but lost sight of the fact that same order had to be made with regard to the moneys lying in the court. In  his  appeal, it was contended by  Banarsidas  that  that

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portion of the decree which declared the partnership to have been  dissolved on May 13, 1944, should be set  aside.   But the  High Court refused to permit him to urge this point  in as much as he had admitted in his written statement that the partnership  was dissolved on May 13,1944.  The  High  Court also  said  that the decree which had  been  passed  against Banarsidas  in  so  far as this relief is  concerned  was  a consent  decree  and that an appeal therefrom is  barred  by s.96, sub-s. (3), of the Code of Civil Procedure.  Upon this view, the High Court dismissed his appeal. Dealing  with Munnalal’s case, the High Court observed  that the only relief sought by him was that Banarsidas should  be asked to render accounts for the year 1944-1945, and that as it had already held, while dealing with Kanshi Ram’s  appeal that  this claim was barred by time, his appeal should  also be dismissed. Banarsidas  has come up in appeal against the judgments  and decrees  of the High Court in all the three appeals and  his appeals are Civil Appeals Nos. 94 to 96 of 1960.   Kundanlal has preferred an appeal from the judgment and decree of  the High Court in Kanshi Ram’s appeal, which is numbered  325 Civil  Appeal  No. 97 of 1960.  This  judgment  governs  all these appeal. The points raised by Mr. Veda Vyasa on behalf of  Banarsidas are these : (1)  Under the Partnership Act, the partners are entitled to have the business of the partnership wound up even though  a suit for accounts is barred under Art. 106 of the Limitation Act. (2)  Kanshi  Ram  having been appointed a  Receiver  by  the Court  stood  in  a  fiduciary  relationship  to  the  other partners and the assets which were in his possession must be deemed  to have been held by him for the benefit of all  the partners.     Therefore,   independently   of   any    other consideration, he was bound to render accounts. (3)  The  question  of’  limitation was not  raised  in  the plaint or the grounds of appeal before the High Court and as it  is a mixed question of fact and law, it should not  have been made this foundation of the decision of the High Court. If it was thought necessary to allow the point to be  raised in view of the provisions of s. 3 of the Limitation Act, the courts  should at least have followed the provisions  of  O. 41,  r. 25, Code of Civil Procedure, and framed an issue  on the point and remitted it for a finding to the trial court. (4)  The Court was wrong in holding that limitation for  the suit commenced on May 13, 1944. (5)  The High Court was wrong in resorting to the provisions of O.41, r.33, of the code of Civil  Procedure. Before  we consider the points raised by Mr. Veda Vyasa,  we would like to point Out that at 326 the  commencement  of the argument, Mr. Veda Vyasa  made  an offer  that  if  all  the  parties  agreed,  Banarsidas  was prepared  to waive his claim for accounts against  Kundanlal and  Kanshi Ram provided that the decree of the trial  court was  restored in other respects.  While the learned  counsel appearing  for those two Parties were willing to accept  the offer, two others were not, and, therefore, we must  proceed to  decide the appeals on their merits.  The most  important point  to  be considered is whether the suit was  barred  by limitation.   If the appellants in these appeals succeed  on this  point, the first, second and fifth points will  really not arise for consideration. In  the plaint in the present suit, the plaintiff  Kundanlal

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alleged  in  para 10 that the partnership being at  will  it stood dissolved on May 13, 1944, when Sheo Prasad filed suit No-  105 of 1944 in the court of the Sub-Judge, Lahore.   No doubt,  as  pointed out by the High  Court,  Banarsidas  has admitted this fact in his written statement at no less  than three  places.  The admission, however, would bind him  only in  so  far as facts are concerned but not in so far  as  it relates  to a question of law.  It is an admitted fact  that the partnership was at will.  Even so, Mr. Veda Vyasa points out,  the  mere filing of a suit for dissolution of  such  a partnership  does not amount to a notice for dissolution  of the  partnership.   In this connection, he relies  upon  68, Corpus Juris Secundum, P. 929.  There the law is stated thus :  The  mere  fact that a party goes  to  court  asking  for dissolution  does not operate as notice of dissolution.,  He then points out that under O.20, r. 15, of the Code of Civil Procedure,  a partnership would stand dissolved as from  the date  stated in the decree, and that as the Lahore suit  was dismissed in default arid no decree was ever passed  therein it  would be incorrect even to say that the  partnership  at all stood dissolved because of the institution of the  suit. On the other hand, it was contended on behalf of some  327 of  the respondents that the partnership being one at  will, it  must be deemed to have been dissolved from the  date  on which  the suit for dissolution was instituted and  in  this connection  reference was made to the provisions  of  sub-s. (1) of s. 43 of the Partnership Act which reads thus :               "(1)  Where  the partnership is at  will,  the               firm  may be dissolved by any  partner  giving               notice in writing to all the other partners of               his intention to dissolve the firm." The  argument seems to be based on the analogy of suits  for partition  of  joint Hindu family property, with  regard  to which it is settled law that if all the parties are  majors, the  institution of a suit for partition will result in  the severance of the joint status of the members of the  family. The analogy however cannot apply, because, the rights of the partners  of  a firm to the property of the firm  are  of  a different  character  from those of the members of  a  joint Hindu  family.   While the members of a joint  Hindu  family hold  an  undivided  interest in the  family  property,  the partners of a firm hold interest only as  tenants-in-common. Now as a result of the institution of a suit for  partition, normally the joint status is deemed to be severed, but then, from that time onwards they hold the property as tenants-in- common  i.e.,  their rights would  thenceforth  be  somewhat similar  to those of partners of’ a firm.  In a  partnership at  will, if one of the partners seeks its desolution,  what he  wants  is  that the firm should be wound  tip,  that  be should  be given his individual share in the assets  of  the firm  (or  may  be that he should  be  discharged  from  any liability  with  respect to the business of the  firm  apart from  what  may  be found to be due from  him  after  taking accounts) and that the firm should no longer exist.  He  can call  for the dissolution of the firm by giving a notice  as provided   in  sub-s.  (1)  of  s.  43  i.e.,  without   the intervention of 328 the court, but if he does not choose to do that and wants to go  to the court for effecting the dissolution of the  firm, lie  will, no doubt, be bound by the procedure laid down  in 0.20, r. of the Code of Civil Procedure, which reads thus:               "Where  a  suit is for the  dissolution  of  a               partnership  or  the  taking  of   partnership

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             accounts,  the Court, before passing  a  final               decree,   may   pass  a   preliminary   decree               declaring  the  proportionate  share  of   the               parties,   fixing   the  day  on   which   the               partnership shall stand dissolved or be deemed               to  have  been dissolved, and  directing  such               accounts  to  be taken, and other acts  to  be               done, as it thinks fit." This rule makes the position clear.  No doubt, this rule  is of general application, that is, to partnerships at will  as well  as  those  other  than  at  will;  but  there  are  no limitations  in this provision confining its operation  only to partnerships other than those at will.  Sub-s. (1) of  s. 43 of the Partnership Act does not say what will be the date from  which  the firm will be deemed to be  dissolved.   For ascertaining  that, we have to go to sub-s. (2) which  reads thus :               "The  firm is dissolved as from the date  men-               tioned   in   the  notice  as  the   date   of               dissolution or, if no date is so mentioned, as               from  the  date of the  communication  of  the               notice." Now,  it will be clear that this provision contemplates  the mentioning  of  a  date  from which  the  firm  would  stand dissolved.   Mentioning  of such a date  would  be  entirely foreign Lo a plaint in a suit for dissolution of partnership and   therefore  such  a  plaint  cannot  fall  within   the expression  "notice"  used  in the  Sub-Section.   It  would follow  therefore  that  the date of service  of  a  summons accompanied  by  a  copy  of  a  plaint  in  the  suit   for dissolution of 329 partnership cannot be regarded as the date of dissolution of partnership and s. 43 is of no assistance. Even  assuming,  however,  that the  term  "notice"  in  the provision is wide enough to include within it a plaint filed in  a suit for dissolution of partnership,  the  sub-section itself provides that the firm will be deemed to be dissolved as  from the date of communication of the notice.  It  would follow, therefore, that a partnership would be deemed to  be dissolved  when  the summons accompanied by a  copy  of  the plaint  is served on the defendant, where there is only  one defendant,  and  on all defendants, when there  are  several defendants.   Since  a  partnership will  be  deemed  to  be dissolved only from one date, the date of dissolution  would have to be regarded to be the one on which the last  summons was  served.   Now,  if the High Court wanted  to  give  the benefit   of  the  provisions  of  s.  43  to  any  of   the parties--defendants before it , it should have borne in mind the  full  implications  of those provisions.   We  have  no material on record for ascertaing the date on which the last summons  was  served in this case.  Since that date  is  not known or could have been known by the High Court, it was  in error in holding that the suit was barred by time. The  High Court has overlooked the fact that even  upon  the argument  addressed before it on behalf of Kanshi Rain,  the question  of limitation was not one purely of law but was  a mixed  question of fact and law and, therefore, it  was  not proper for it to allow it to be raised for the first time in argument.   We  are satisfied that what the High  Court  has done has caused prejudice to some of the parties to the suit and  on that ground alone, we would be justified in  setting aside  its decision.  If the High Court felt overwhelmed  by the  provisions of s. 3 of the limitation Act, it should  at least  have  given  an opportunity to    the  parties  which

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supported the 330 decree of the trial court to meet the plea of limitation  by amending  their pleadings.  After allowing the pleadings  to be  amended, the High Court should have framed an issue  and remitted  it for a finding to the trial Court.   Instead  of doing so, it has chosen to treat the pleading of one of  the defendants  as conclusive not only on the question  of  fact but also on the question of law and dismissed the suit.   It is quite possible that had an opportunity been given to  the defendants,  they  could have established,  in  addition  to proving  the dates on which the summonses were served,  that the suit was not barred by time because of acknowledgment in the  course of the discussion, the High Court had said  that it was not suggested before it by anyone that the claim  was not  barred  by reason of acknowledgments.   Apparently,  no such  argument  was  advanceb before it  on  behalf  of  the plaintiff  and the defendant Banarsidas because the  counsel were apparently taken by surprise and had no opportunity  to obtain  instructions  on this aspect of the  case.   We  are clearly  of  opinion  that the High Court was  in  error  in allowing  the  plea  of limitation to be  raised  before  it particularly by defendants who had not even filed a  written statement in the case.  We do not think that this was a  fit case for permitting an entirely new point to be raised by  a non-contesting party to the suit. In view of our decision on this point, it would follow  that the High Court’s decision must be set aside and that of  the trial court restored.  We may, however, mention that some of the  parties  including  the appellant  Banarsidas  and  the plaintiff-respondent,  Kundenlal as well as  the  defendant- respondent  Kanshi Ram were agreeable to certain  variations in the decree.  But as there were other parties besides them to whom these variations are not acceptable, we are bound to decide the appeals on merits.  For the aforesaid reasons, we allow  the appeals of Banarsidas and Kundanlal  and  restore the decree of the trial 331 court, but make no order as to costs. Along  with  the appeals, we heard two  Civil  Miscellaneous Petitions, Nos. 1482 of 1962 and 1534 of 1962.  The first is to  the effect that the lease granted by this  Court  during the  pendency of these appeals should be  terminated  early. It  is said that the reason why the term of five  years  was fixed was that this Court was seized with the litigation and it was expected to last for five years.  But as it  happens, it  has  terminated  within  about a year  and  a  half  and therefore  there  is no reason for the  lease  to  continue. Apart from the fact that it would not be in the interest  of the  parties  to determine the lease before  its  expiry  we doubt  whether we can legally do SO. We,  therefore,  reject this  application.  As regards the other application, it  is agreed  between parties that it should be considered by  the Receiver when the assets are distributed. We  may  also mention that during arguments  it  was  stated before us on behalf of Banarsidas that he had installed some new machinery for the efficient running of the mill and that before  the mill is sold he should be allowed to remove  the machinery.  It was suggested that perhaps it would be in the interest  of all the parties if the mill is sold along  with the  new machinery at the date of sale.  The other  parties, however said that it would be best if Banarsidas removes the machinery   before  the  expiry  of  the  lease.    In   the circumstances,  we can give no direction in the matter.   It will  be  open to the parties, however, to  agree  upon  the

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course  to be adopted when the Receiver sets  about  selling the machinery, or if they do not agree, to obtain directions from the High Court. While we dismiss the Civil Miscellaneous Petitions, we  make no order as to costs. Appeals allowed. 332