The first point is whether the present suit is barred under O. 9, R. 9, by reason of the former suit.
Cases of a second suit for partition may fall under three classes.
(1) Where the former suit ended in a final decree, e.g, Soni v. Munshi (3) distinguished in Maden Motion Mondul v. Baikanta Nath Mondul (4).
(2) Cases where there was a preliminary decree but not a final decree: Examples of this are Mukerji v. Afzul Beg ; Muriamnessa Bibee v. Joynab Bibee. and Sethu Rama Sahib v. Chotta Raja Sahib .
(3) Gases where the suit was dismissed for default Bisheshar Das v. Ram Prasad Madhura Gramani v. Sesha Reddy (5).
The case before us falls under the last heading. Following the decisions in Bisheshar Das v. Ram Prasad and Madhura Gramani v. Sesha Reddy , we hold that the present suit is not barred. The reason is that, even after the dismissal of the former suit, the jointness continues and there is a continuing cause of action.
It is unnecessary to consider the decision in Sethu Rama Sahib v. Chotta Raja Sahib and whether Mukerji v. Afzul Beg , was rightly dissented from in it.
The only other point relates to interest. The plaintiff will have interest only from the date of plaint: (vide Nanchappa Goundan v. Ittichathara Mannadiar (6). The decree is affirmed subject to this modification.
As the appellant has substantially failed he will pay the costs of the respondent.
N. R. R.Decree accordingly.