HUSSAINI BEGUM Vs. MUMTAZ ALI

JUDGEMENT

(1.) .On 19th Ardibehisht 1358 Fasli, the Darul Qaza Court, Hyderabad, passed a preliminary decree for partition with respect to the ' Matruka' of Syed Shah Zaheruddin. The suit was filed by his wife. He left two sons and three daughters. So, under the Mohammedan Law, the wife is entitled to one share, the two sons two shares each and the three daughters one share each. The preliminary decree is in the following terms : " It is ordered that as described above the original decree about the Matruka of Syed Shah Zaheruddin is passed. The value of the Matruka and the fixation of mesne profits will be made at the time of finalisation of the decree. The plaintiff will receive costs of the suit to the extent of the decree. The costs of forma pauperis will be paid by the plaintiff. File be struck off the roll and consigned to record." Then, there was a list of Matruka properties left by Syed Shah Zaheruddin with the following endorsement: " The Matruka of the deceased will be divided into 8 shares. Wife one share, son two shares, son two shares, daughter one share, daughter one share, daughter one share."

(2.) The wife of the deceased i.e., the plaintiff took out certain proceedings for the passing of a final decree for partition of the Matruka by metes and bounds. She was not diligent in prosecuting those proceedings and ultimately, all her attempts failed. Then, the 5th defendant in the suit, who is one of the daughters, filed I.A. No. 341 of 1960 under Order 26, rules 13 and 14 and section 151, Civil Procedure Code, for the appointment of a commissioner for distribution of the Matruka property left by late Syed Shah Zaheruddin Khadri amongst the sharers and to make the preliminary decree final and to pass such other orders as the Court deems fit. The First Additional Chief Judge, City Civil Court, Hyderabad, who heard the petition, dismissed it on the ground that it is barred by limitation. Two points were raised before the learned Judge. One is that the petition at the instance of the 5th defendant was not maintainable. This objection he over-ruled after holding that the petition at the instance of the 5th defendant was maintainable because the preliminary decree declared the shares of each of the parties to the suit. Next, the learned First Additional Chief Judge considered the question of limitation. In the counter-affidavit, it was pleaded that the application was barred under Article 181 of the Limitation Act and also section 48, Civil Procedure Code. The learned First Additional Chief Judge held that the petition for passing of the final decree is barred under section 48, Civil Procedure Code, as it was filed more than 12 years after the passing of the preliminary decree. This view of the learned Judge is clearly wrong. The proceedings for the passing of the final decree pursuant to the preliminary decree are not proceedings in execution. Section 48, Civil Procedure Code, which he quotes in his order, clearly refers to an application to execute a decree and not an application to pass a final decree pursuant to the preliminary decree. Surprisingly enough, the learned Judge held that the application is barred under section 48, Civil Procedure Code. This view of the learned Judge is clearly wrong and is, therefore, set aside.

(3.) Next the learned Judge also observed that the application is barred under the Limitation Act. He does not specify under what provision of the Limitation Act, he holds that it is barred by limitation. Since the learned Judge took the application to be one for execution of the preliminary decree, very probably, he was thinking of Article 182 of the Limitation Act. If that be so, the learned Judge is clearly wrong because the application was not one for execution of the decree. Therefore, this finding of the learned Judge is also set aside and I.A. No. 341 of 1960 is remanded to the lower Court for disposal in accordance with law.