Burkitt, J.:— The decision of the Subordinate Judge in this case is entirely wrong, and if the Subordinate Judge had taken the trouble of reading the cases of Shah Muhammad Khan v. Hanwant Singh(1), and the subsequent case of Zubaida Jan v. Muhammad Taieb(2), both of which were published some months before the judgment under appeal, he would have avoided falling into the mistake he has made in this case. The Subordinate Judge evidently is under the impression that a final decree in this partition case has been passed, in that he is wrong. A final decree has not been passed. As explained in the two cases referred to above, a decree declaring the rights of the parties, i.e, a decree declaring that the applicant for partition is entitled on partition, [411] to a specific share in certain immoveable property is all that has been done up to the present. The application now made to the Court has been wrongly made as an application for execution of that decree, and has been treated by the Court as an application for execution. The application ought to have been treated as an application to the Court to go on with and complete the decree declaring the rights of the parties by appointing an main to prepare a scheme of partition for approval by the Court, as explained in the two cases mentioned above. It is only after a decree has been made by the Court expressing its approval of the partition scheme that there is any decree capable of execution as a partition decree. The Court below was therefore wrong in holding that the proceedings before it were proceedings in execution, and that it could do nothing more in the case. The present appeal is concerned with the refusal of the Courts below to accede to an application made under the provisions of Act No. IV of 1893. Under s. 10 of the Act the application should have been entertained by the Court. This suit no doubt was instituted before the Act came into force, but s. 10 of the Act provides that the Act shall apply to suits instituted before the commencement of the Act in which no scheme for the partition of the property has been finally approved by the Court. In this case no such scheme has been approved, for the very good reason that, the Court not yet having drawn up the second portion of its decree, no such scheme has ever been prepared or submitted for its approval. The decision of the lower appellate Court is wrong, and badly wrong, from beginning to end.
I allow this appeal. I set aside with costs, the decree of the lower Court, and I remand the case to that Court for decision on the merits.
Appeal decreed and cause remanded.