RAMABAI GOVIND Vs. ANANT DAJI

JUDGEMENT

(1.) THIS appeal arises out of proceedings for the execution of a partition decree obtained by the respondent's father Daji Chimnaji against his brother Dhondi Chimnaji and his son Govind Dhondi on January 13, 1928, in the Court of the First Class Subordinate Judge at Ahmednagar. The decree declared that the brothers Daji and Dhondi had each a half share in the family property consisting of lands, houses, moveables and outstandings. It directed Under Section 54 of the Code of Civil Procedure that the lands, which were assessed to the payment of revenue to the Crown, should be partitioned by the Collector or any gazetted subordinate of the Collector deputed by him in that behalf, and for partition of the rest of the property a Commissioner was appointed. On receipt of the Commissioner's report, the decree was made final on July 29, 1930, regarding all the property excepting the lands. There was an appeal to this Court against the final decree in respect of accounts only, and it was slightly modified on November 110, 1936. Both the decree-holder Daji and the judgment-debtors Dhondi and Govind having died, Daji's son Anant filed this darkhast against Govind's widow Ramabai on March 4, 1939, for recovering by partition his half share in the property in suit in execution of the decree obtained by his father. We are not concerned with the houses, the shop, the moveables or the outstandings in this appeal, but only with the partition of the lands, which has to be effected by the Collector or his gazetted subordinate, and with regard to it was contended that the darkhast was time-barred. It is evident that the appeal which was decided by this Court on November 10, 1936, cannot save the bar of limitation, since it was against the final decree which did not touch the lands but effected a partition in the rest of the property only. THIS is fairly conceded on behalf of the decree-holder in view of the clear ruling in Jacinto v. Fernandez (1939) 41 Bom. L. R. 921. Relying upon the same ruling, the lower Court held that the so-called darkhast was only an application to the Court to send the decree and the papers to the Collector as directed in the decree itself, and that there being no provision in the Indian Limitation Act relating to such an application, the darkhast was not time-barred. The papers were, therefore, ordered to be sent to the Collector for partition of the lands in suit, and it is against that order that the judgment-debtor has presented this appeal.

(2.) IN Jacinto v. Fernandez Beaumont: C. J. held that when a Court passed a decree for partition of lands assessed to the payment of revenue to the Crown and referred it to the Collector to carry out the partition, the Court's duties were at an end and that the darkhast asking the Court to send the papers to the Collector was not an application in execution. He took the view that sending the papers to the Collector was only a ministerial act which the Court should have done without being asked. He also took judicial notice of the practice in the mofussil to make an application for that purpose in the form of an ordinary darkhast and said that he saw no particular objection to continue that practice as the form of the application did not determine its real nature, It was, therefore, held that such an application was not governed by any article of the INdian Limitation Act and would never be time-barred. IN this, view the darkhast application was only a reminder to the Court to do its duty.

(3.) THE peculiar character of such a decree is shown by the circumstance that though it is not merely declaratory, it is also not executable by the Court that passed it. Various considerations can be referred to as suggesting that such a decree is in the nature of a preliminary decree. It is true that in Order XX, Rule 18(2), of the Code of Civil Procedure, the decree is not expressly described as preliminary. But let us compare it with other decrees for partition in order to obtain an indication of its true nature. Sub-rule (2) has in such cases expressly empowered the Court to pass a preliminary decree where the partition or separation cannot be conveniently made without further inquiry. THE preliminary decree would in such a case declare what share the plaintiff is entitled to, and the final decree would specify the particular properties which are to correspond to such a share and are to be made over to the decree-holder, if necessary, by proceedings in execution. THE decree contemplated in Sub-rule (2) is very much more of the nature of a preliminary than of a final decree, though further proceedings are left to the Collector under Section 54, the obvious reason being that revenue authorities are considered more conversant and better qualified to deal with such matters and are expected to be able better to safeguard the interests of Government with regard to the revenue assessed on the lands to be partitioned.