1. In this case the appellant, as represented by his brother, now deceased, presented to the Subordinate Judge certain objections to the partition which the Collector was about to make of an estate under a decree. The Subordinate Judge entertained the application, obtained a report from a surveyor, and thereupon made an order for superseding the distribution ordered by the Collector.
2. An appeal was made to the District Court, where the District Judge reversed the Subordinate Judge's order; and on a further appeal to this Court this decision of the District Court was confirmed. But the present appellant was not a party to either of those appeals. Several applications for execution of several decrees had been consolidated in the Court of first instance; the parties concerned were numerous; and in naming the respondents in the District Court the appellants then omitted the present appellant and his brother, who thus dropped out of the further proceedings.
3. The effect of the High Court's decree was to re-establish the status quo ante the Subordinate Judge's order made on the present appellant's objections. But when it was proposed to give effect to the Collector's original project of distribution, the appellant objected that the order made for setting aside that project-and made on his application-must be regarded as still in force as to him, because he had not been even called on to defend it against the appeal to the District Court. It has been contended before us that as there is a kind of joint interest amongst the parties prejudiced by a decree affecting them on a common ground, such that one party appealing may bind his co-judgment-debtors by the result-Babaji Dhondshet v. The Collector of Salt Revenue I.L.R., 11 Bom., 596; so when some of the respondents in the District Court became appellants in the High Court, they represented all the persons in the same interests. But it does not follow that because all who stand on the same right and are similarly affected are bound in an appeal by the result of the judgment between one of their number and the respondent that they should necessarily be bound, without notice, by the steps in a further appeal. If the judgment has been in their favour, they ought not to be deprived of the benefit of it without having the opportunity of defending it. In this case, however, the respondents before the District Court were the appellants here, and though one of them might represent his fellows in a further appeal, he could not represent a person who had not been his co-respondent, and against whom, therefore, no decree could have been made on a point common to the two, or on any point at all.
4. It cannot, therefore, be held that the first appellant is bound because he was represented in the appeals. The only question would be whether the High Court's decree could be carried out against any of the co-sharers when effect could not be given to it without interfering with the holdings of other co-sharers who had not been patties before the High Court.
5. But we are asked now to revive the order of the Subordinate Judge, and that cannot be done without contradicting the decree of this Court, since a partition as amongst some of the co-sharers on a particular principle must needs affect all. It is desirable, before we deal with that problem, to consider whether the Subordinate Judge's order was one that he could legally make. Now the Collector no doubt acts ministerially in executing a decree of a Civil Court, but then a certain discretion is allowed to him; and so long as he keeps within the bounds thus prescribed, the Civil Court has no right to replace his discretion by its own. In the case of a partition of lands, Section 265 of the Code of Civil Procedure and Section 113 of the Bombay Revenue Code (Bombay Act V of 1879) place the execution entirely in the Collector's hands-Parbhudas Lakhmidas v. Shankarbhai I.L.R., 11 Bom., 662. This does not deprive the Court of judicial control of its decree, as for instance, if it should appear to have been obtained by fraud or surprise; but in the present case nothing of that kind was relied on. Nor was it asserted that the Collector had acted in bad faith, or contravened the command of the Court, or transgressed the law. What was alleged was that he had made an objectionable partition. This was not a ground on which the Subordinate Judge could interfere. His order involved taking the execution out of the Collector's hands into his own, in direct contradiction to the law. We cannot resuscitate an order so obviously wrong as this, and we must, therefore, confirm the decree of the District Court. But each party is to bear his own costs throughout the present proceedings.
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