M. Vasudeva Muthu Shasthry v. M. Vittal Shastry

Oldfield, J. — The only question raised by this appeal is whether the decree is still executable by plaintiff, notwithstanding that his last application in 1910 was made over three years before his present application in 1919. He alleges that it is, because time runs against him only from the application of 2nd defendant in 1918, with reference to Explanation (1) Art. 182., Sch. I, Limitation Act.

The decree is for partition, but it is not in the form contemplated by the present Code. For it awards to plaintiff an aliquot part, specified as one quarter of certain family lands and the profits therefrom and also his costs, the ascertainment of the particular lands and the amount recoverable as profits being apparently reserved for execution. No doubt such a decree is not like a decree for money or for the delivery of specific property—a decree in favour of the plaintiff alone, and “in a suit for partition the decree is in favour of each sharer,” Dost Muhammad Khan v. Said Begam(1). And again “It is in consequence of the reciprocal character of the right which co-owners have in the matter of partition, that even those who are not actual plaintiffs can claim that their shares also be alloted to them by the decree”. Assan v. Pathumma(2). Such descriptions of partition decrees may in some cases justify reference in connection with their execution to the portion of Explanation 1 to Art. 182, which deals with decrees passed jointly against more persons than one, because the family property may be in the hands of or may be recoverable from some or all of the members of the family, other than the excluded plaintiff. But that portion of the explanation will be relevant, only if the question is whether an application for execution against one party affords a starting point for time for an application against another and not when, as in the present case, the question is of reliance by one party on an application made by another.

On that question it is urged for respondent that the decree before us has not been passed jointly in favour of more persons than one, but severally in favour of each of those concerned, distinguishing the share deliverable to each; and this would appear to be so, because each party is entitled to recover only his own share and that share is not the less distinguishable from that deliverable to others; because the property comprising each share is regarded as to be ascertained. Shortly, similarity between the rights of each of the parties under a decree will not make it a joint decree in their favour. O. 21, R. 15 Civil Procedure Code dealing with “a decree passed jointly in favour of more persons than one”, that being the wording of the explanation under construction, clearly cannot refer and has never been construed as referring to decrees, like that before us. If those were the only considerations the failure of the appeal would follow.

The appellant-petitioner however relies on authority to the contrary effect. In Shaikh Khoorshed Hossein v. Nubbee Fatima there were only two sharers, parties to the decree, and it is possible to understand the Court's conclusion that execution taken by one of them was on account of both. But the judgment further describes a partition decree as a “joint declaration of the rights of persons interested in the property of which partition is sought”. This decision was given without reference to any positive provision of law and was dissented from, although obiter in Hikmat Ali v. Wali-un-nissa. But it was cited and apparently followed with reference to Act XV of 1877 in Mohunchunder Kurmokar v. Mohesh Chunder Kurmokar(3) see also Narayan v. Vithal(4) and Jeddi Subraya v. Ramrao(5). The description of a partition decree as “a joint declaration” above cited has been reproduced in Dost Muhammud Khan v. Said Begam(6) although not with reference to limitation. In Assan v. Pathumma(7) the decision in Shaikh Khoorshed Hossein v. Nubbee Fatima was referred to with approval, although it was said with reference to misjoinder, not limitation, that the reciprocal character of the rights of the parties rendered the cause of action the same, each party however being entitled to separate relief. The only other authority we have been shown is the judgment of Ramesam, J., and myself in Ramaswami Aiyangar v. A. Narayana Aiyangar and in it the two Calcutta cases cited above are referred to as consistent with our conclusion, although, as the printed record shows, the question mainly argued before us was not whether the decree under execution was in favour of the sharers jointly, that not being seriously disputed, but whether the ascertainment of the share of a particular party, which has subsequently taken place, made the decree one passed severally in his favour. The result is that throughout Shaikh Khoorshed Hossein v. Nubbee Fatima and Mohun Chunder Kurmokar v. Mohesh Chunder Kurmokar, have been accepted as deciding that partition decrees are passed jointly in favour of the sharers and no instance, in which the contrary view has been acted on, has been shown. The question is one of limitation and therefore of procedure; and the course of authority must be the decisive consideration. I would therefore allow the appeal against order, setting aside the lower Court's decision and remanding the appeal for readmission and rehearing in the light of the foregoing with reference to any other material authorities. Costs to date here and in the lower appellate Court will be costs in the cause and be provided for in the order to be passed.

Venkatasubba Rao, J.—I agree.

C.KAppeal allowed.