Theyyunni Menon vs Kamalam and another

Satyanarayana Rao, J.—On the principle enunciated by Pandalai J. in Muhammad Sahcob Levvai Sayabu v. Mayamad Ammal 65 M.L.J. 582-38 L.W. 508. I think the conclusion, though not the reasoning of the Courts below, is correct. The final decree is in a partition suit relating to tar wad properties and after division by the commissioner each sharer was allotted specific properties described in the various schedules. The seventh defendant was allotted the C schedule property. He died and the legal representatives filed the present execution petition. Out of this C. M. S.A. arises. They were faced with the contention that the application was barred by limitation as it was filed more than three years after the date of the final decree. In order to get over this impediment in their way, they relied upon an earlier execution petition filed by the assignee of the plaintiff''s share for execution and the order thereon. The question argued in the Courts below was whether that order would avail the seventh defendant''s legal representatives to get over the plea of limitation. The Courts below held that the case was within the last part of Explanation 1 of Art. 182 of the Limitation Act. The correctness of this view is canvassed in this C. M. S. A. by the learned Advocate for the appellant. His contention is that under O. 26, R. 14 C. P. Code, 1908, an executable final decree has to be passed, and as in the present case the seventh defendant was allotted the C schedule property, so far as he was concerned the decree could not be treated as a joint decree. In order, however, to determine the nature of the decree, one has to look into the substance of the decree and not merely the form of it. The suit related to tar wad properties and the final decree divided the properties among the sharers. It does not say specifically against whom the execution of the decree is to proceed, with reference to the property allotted to the seventh defendant. But in sub-stance and effect, it is a decree against all the members of the tar wad who were imploded as patties. In order to make his position effective against all, the assignor of the plaintiff''s 1st are has necessarily to impaled as parries to the execution petition all the defendants and the plaintiff who were parties to the action. The karnavan after the institution of the suit and the decree no longer represents the other member of the tar wad and it is therefore necessary to impaled all the sharers as parties to claim the relief''s that are granted under the decree. The decree, therefore, in effect was passed jointly against more persons than one within the meaning of second part of Explanation 1 of Art. 182 of the Limitation Act and therefore the earlier application made on behalf of the assignee of the plaintiff''s share and the order thereon would save the bar of limitation for the present application. In this view I am supported to a large extent by the decision of Pandalai J. sitting as a single Judge in Muhammad Sahoob Levvai Sayabu v. Mayammad Ammal 65 M.L.J. 582-38 L.W. 508. Following that decision 1 must confirm the order of the Courts below and dismiss this civil miscellaneous second appeal wish costs. No leave.