Sarjuprasad and Another vs Deoki Singh and Others

Harries, C.J.—This is a second appeal from an order of the learned District Judge of Gaya in an execution matter. The decree-holders, who are respondents in this appeal, brought proceedings claiming partition of an estate. A preliminary decree was passed which was eventually made final. Four takhtas were prepared and allotted to the respective parties and one plot of land was left joint between the parties. The date of the final decree in this partition suit is 26th October 1923. On 22nd December 1936, the decree-holder-respondents filed an execution application praying for delivery of possession of the takhta allotted to them. It is to be observed that this application was made more than three years after the date of the partition decree; but it is common ground that during the interval two of the interested parties had made applications in execution and had obtained possession of their respective takhtas.

If these two applications enure for the benefit of all the parties, then it has to be conceded that the application of the decree-holder-respondents was within time.

In the execution case filed on 22nd December 1936, the decree-holders impleaded all the parties to the partition suit, but only the present appellants raised an objection,

On 27th September 1937, the appellant Sarju Prasad filed an objection praying that the execution case be dismissed on the ground that it was barred by limitation. It is to be observed that in this objection the appellant Sarju Prasad impleaded only the present decree-holder-respondents.

He did not implead the other parties to the partition proceedings. This objection was treated as separate miscellaneous case and numbered Miscellaneous Case No. 99 of 1937, and in due course, this miscellaneous case was heard and determined by the learned Subordinate Judge. He held that the previous application in execution did not enure for the benefit of the decree-holder-respondents, and accordingly he came to the conclusion that their application for execution was barred by limitation in that it was presented beyond the period of three years from the date of the partition decree. On appeal the learned District Judge was of opinion that the execution application was not barred by time and reversed the decision of the Court below. It is against the order of the learned District Judge that the present second appeal has been filed.

In the first place, it has been argued that the application for execution made by the decree-holder was barred by time. Counsel for the appellants has urged that the two previous applications made by other parties could not be regarded as applications made by holders of a joint decree and thus would not enure for the benefit of the decree-holder-respondents. Counsel has relied upon the case in Ram Nath Rai Vs. Harendra Kumar Rai, . In that case it was held that an application by one of several parties to a partition decree to be put in possession of land allotted to him in severalty is not an application by one of a number of joint decree-holders, and thus such an application would not prevent time running against other parties to the partition decree.

It must be remembered that in Ram Nath Rai Vs. Harendra Kumar Rai, no property had been left joint by the partition decree. The facts of the present case cannot be distinguished from the facts in Mon Mohan Gope Vs. Madhu Sudan Gope, . In this latter case the partition decree allotted certain properties in severalty to each of the parties but reserved a certain property as ijmali between the plaintiff and the defendants; the plaintiff applied for execution and received part satisfaction. Subsequently some of the defendants applied for execution beyond three years of the date of the decree but within three years of the plaintiff''s application for execution. A Bench held that the decree was passed jointly in favour of the plaintiff and the defendants within the meaning of Expln. 1 of Article 182, Limitation Act, and the defendants'' application having been made within three years of the plaintiff''s application for execution, it was not barred by time.

No distinction whatsoever can be drawn between the present case and the case in Mon Mohan Gope Vs. Madhu Sudan Gope, , and in my judgment this latter Calcutta case should be followed. Expln. 1 to Article 182, Limitation Act, is in these terms:

Where the decree on order has been passed severally in favour of more persons than one, distinguishing portions of the subject-matter as payable or deliverable to each, the application mentioned in Clause 5 of this Article shall take effect in favour only of such of the said persons or their representatives as it may be made by. But where the decree or order has been passed jointly in favour of more persons than one, such application, if made by any one or more of them, or by his or their representatives, shall take effect in favour of them all.

The question to be decided here is whether the decree passed in this partition suit was a joint decree or not. It certainly gave the plaintiffs and defendants joint possession of part of the property, though it also gave them separate possession of other properties.

The decree cannot be regarded as both a joint decree and a several decree. It cannot be regarded as though there is one decree for joint possession in favour of the plaintiffs and the defendants and another decree for separate possession of their respective allotments. In Mon Mohan Gope Vs. Madhu Sudan Gope, , Rankin, C.J. observed:

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 kali-khola and the road are concerned, and 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 this appeal must fail.

He held that the decree in that case which was very similar to the decree in the present case, was a joint decree and could not be regarded both as a joint decree and a decree held by each of the parties in severalty.

The view expressed by the Calcutta High Court has been approved of in the case of Muhammad Sahoob Levvai Sayabu Vs. Mayamad Ammal, . In my judgment the present decree must be regarded as a joint decree, and that being so, the previous applications for execution must be regarded as applications which would take effect in favour of all the parties. It is common ground that the present application was made within three years of the previous execution application, and that being so, the application was not barred by Article 182, Limitation Act.

In the second place, it has been argued that the appeal before the learned District Judge was bound to fail for want of parties. The learned District Judge held that there was no defect, but it has been strenuously urged before us that the learned District Judge could not decide the question of limitation in the absence of all the parties to the partition decree. The decree-holders impleaded all the parties to the partition decree in their execution application but as I have stated only one of them, namely the appellant, raised an objection. He filed an objection impleading the decree-holder-respondents only, and this objection was treated as a separate miscellaneous case. What the Subordinate Judge decided was a proceeding between the appellant and the decree-holders and having decided it in favour of the appellant the decree-holders were fully entitled, in my view, to appeal to the District Judge and implead only the appellant as respondent to the appeal.

The appellant by his objection had invited the Court to decide the matter between him and the decree-holders, and that being so, he cannot now raise an objection that the decree-holders should have impleaded other parties who were not made parties by the appellant himself in Miscellaneous Case No. 99 of 1937. The matter was one purely between the parties to this appeal, and that being so, the respondents were not bound to implead the other parties to the partition decree.

It has been contended that a decision of the Court on the question of limitation binds all the other parties to the execution decree. Clearly, in this case, the appellant only invited a decision between him and the decree-holder, and it is unnecessary for us to consider at this stage what the possible effect of any finding on limitation might be.

It is sufficient to say that the order under appeal was an order made between the parties to this appeal, and that being so, it cannot be said that the appeal before the learned District Judge could not be sustain, ed by reason of failure to join other persons who might be interested. The appellant himself limited the scope of the proceedings and he cannot object to the manner in which the appeal was preferred in the Court of the learned District Judge. In my view, there is no merit whatsoever in this objection. For the reasons which I have given, I hold that this appeal fails and would accordingly dismiss it with costs.

Fazl Ali, J.

I entirely agree.