Sarju Prasad and Others vs Baldeo Prasad and Others

Ray, J.—This is a decree-holders'' appeal against an order of the Subordinate Judge, first Court, Patna, dismissing his application for execution of a partition decree as barred by limitation. The relevant dates are 28th October 1938, when the preliminary decree was passed, and 10th August 1939, when the decree was made final. The decree was passed in a Court at Gazipur, and the present execution has been filed in the Court at Patna, obtaining an order of transfer of the decree for execution from the Court that passed the decree on 13th November 1942. An objection was taken on behalf of the judgment-debtors that the petition for transfer having been filed more than three years after the date of the final decree it is barred by limitation, and the learned Subordinate Judge has found in favour of this contention, and dismissed the execution case as time barred.

On behalf of the decree-holder-appellants reliance is placed upon Part 2 of Expln. 1 to Article 182, Limitation Act. His contention is that this was a partition suit in which the properties were divided into several allotments and given to different parties as appertaining to their shares but some of the properties were not divided by metes and bounds, but in respect there, of only the shares of the parties were defined, and they were left joint. Therefore, the decree that has been passed is one which is passed jointly in favour of several persons and jointly; against several persons. Therefore, if any one of the parties interested in this decree has filed an execution petition or has taken any step-in-aid of execution in accordance with law within the meaning of Clause (5) of Article 182, in time that would enure for the benefit of all the decree-holders and will operate as against all the joint judgment-debtors in order to save limitation.

Learned Counsel for the appellants urges that there are two items of properties in respect of which such joint decree or order can be said to have been passed. One is with regard to articles of mahfil in Schedule 1(a) of the plaint in Suit No. 1 of 1988, in respect of which it is said that half the share in 4 pairs of shawls and 2 moongamalas should be allotted to Mahadeo Prasad and others, and one-fourth share should go to Baldeo Prasad, defendant in the suit, and another one-fourth should go to Sarju Prasad and others who are decree-holder-appellants. The second item of property with regard to which learned Counsel claimed that there was a joint decree is a residential ancestral zanana house situated at Bahadurganj. With regard to this house it is mentioned in the decree that each party will get half the share, one towards the east and the other towards the west, and it is not very clear on the face of the allotments stated in the decree whether this property has been left joint. However, leaving this question open, it is quite clear that at least with regard to one item of property mentioned above a joint decree within the meaning of Expln. 1 to Article 182 has been passed in favour of several decree-holders and as against several judgment-debtors jointly.

In support of this contention learned Counsel has cited a decision of the Calcutta High Court, Mon Mohan Gope Vs. Madhu Sudan Gope, In that case there was a partition decree in which a very narrow strip of land furnishing egress and ingress to the house and a kalikhola had been left joint. After the decree, the plaintiff had brought an execution case and got delivery of possession of certain properties which had been separately allotted to him. The respondent decree-holders of that appeal filed an execution, and the question of limitation was raised on the ground that their application was beyond three years from the date of the decree, but it was within three years from the date of the execution taken out by the plaintiff. The contention was that even though the decree was several and separate in respect of the major portion of the properties the very fact that a portion however small was left joint would bring the decree within the meaning of a joint decree. Rankin C.J. said:

It seems to me that the decree before us is certainly one passed jointly in favour of the plaintiff and the present respondents so far as the kalikhola and the road are concerned unless the decree is for the present purpose to be regarded as though there was one decree for joint possession in favour of the respondents and the plaintiff and another and different decree for separate possession of their allotments by the respondents. I think the appeal must fail.

In other words, his Lordship held that the decree cannot be divided into two and be considered as one a decree for separate possession and another a decree for joint possession. The decree should be taken as one whole. This decision was followed in this Court in Sarjuprasad v. Deoki Singh AIR 1940 Pat. 147 in which it was said where a partition decree has allotted certain properties in severalty to each of the parties but has reserved a portion as joint with the parties, such decree must be regarded as joint decree within the meaning of Expln. 1 to Article 182. In this particular case, before the filing of this execution petition, Baldeo Prasad, one of the joint decree-holders and also one of the joint judgment-debtors, had started execution in the month of July 1942, which was within three years of the final decree, and this execution case should enure to the benefit, of the present decree-holders as well in view of the Explanation to Article 182, Limitation Act, so as to give a fresh start after limitation.

In the circumstances this appeal must be allowed, and the order of the learned Subordinate Judge set aside. As there is no appearance for the respondents the appellants are not entitled to any costs in this Court.

Meredith, J.

I agree.