NILABATI Vs. SUKURTA

JUDGEMENT

(1.) This appeal arises in execution of a compromise decree. The compromise decree was in a suit for partition, brought by the junior widow of one Bhagirathi Patel, the late Gountia of the village Laikera against the senior widow of the said Bhagirathi Patel. She claimed partition of various items of land set out in Schedule A attached to the plaint. She claimed in the first instance, eight annas share in all the items. It would appear that item (1) of Schedule A as stated in the schedule itself is a sixteen annas protected Thekadari Gountia share of mouza Laikera with Sir lands and other appurtenant rights thereto, covering a total extent of 194.99 acres. The defendant-widow is the Gountia who has succeeded to the Thekadari right. The plaint itself recognises the likelihood of this item (1) of Schedule A being held not to be partible and hence prayed in the alternative that in case this item is held to be not partible, she may be granted maintenance out of that property and that an eight-anna-share may be decreed in respect of the other items of property. The suit was ultimately compromised. In the compromise it was recited that item (1) of Schedule A being a protected thikadari was not liable to partition but that the plaintiff should be given a six-anna-share thereof towards her maintenance. As regards the other items of property, she has been given by the compromise a five-anna-share. There was a specific clause in the compromise that the partition as above provided should be effected amicably between the parties within two months of the date of the decree and that in case that was not done, the plaintiff would be entitled to apply to the Court for appointment of a commissioner to effect the partition. The amicable partition contemplated, not having materialised, the plaintiff-decree-holder applied to Court, in execution of the decree, for appointment of the commissioner, and for allotment of shares, so that ultimately she may be given possession of the share so allotted to her. The defendant-judgment-debtor objected that a commissioner cannot be appointed and relied on Order 26, C.P.C., as showing that a commissioner can be appointed only in the course of the suit and not in execution proceedings. This contention was overruled by the Courts below and the execution has been ordered to proceed. It is against that order this appeal has been brought up.

(2.) The same contention has been raised before us, but it is quite clear that this contention is untenable. There is clear authority for the position, that whether or not Order 26 applies to execution proceedings, there is nothing to prevent a commissioner being appointed in execution of a decree where the parties themselves have agreed by compromise that the partition shall be so effected. The case in --'Gopal Das v. Jagannath Prasad', AIR 1938 All 266 (A), is clear authority for the position, and we entirely agree with this view.

(3.) Learned counsel for the appellant, has however, raised another point which was not raised in the Courts below. We have allowed him to raise the point, since it is purely a matter of law. He contends that by virtue of Section 65-A, Sub-section 4(a), C. P. Land Revenue Act, the lands comprised in a protected Thekadari tenure are not liable to partition and that the decree to the extent that it provides for partition of item (1) of Schedule A is opposed to this statutory provision and is a nullity and that therefore that this clause in the decree cannot be executed. He contends that such a plea attacking the validity of the decree itself is open in execution proceedings since it raises a question of the power of the Court to act in contravention of the statutory provision. Learned counsel for the respondent contends on the other hand that the question as to the partibility of this item of property being itself a matter at issue in the suit, must be deemed to have been finally disposed of by the decree, whether the same was on contest or by compromise and that therefore, it is not open to the judgment-debtor to raise any such contention in the execution stage. It is unnecessary for us in this case to decide the correctness or otherwise of the argument, as to whether this point is now open, because, we have come to the conclusion that the main contention urged by learned counsel for the appellant, viz., that the arrangement contemplated in the compromise decree to allot a six-anna-share out of item (1) of Schedule A for the purpose of the plaintiff's maintenance, is really only a partition contrary to the prohibition under Section 65-A, Sub-section (4) (a), C. P. Land Revenue Act of 1881, is not correct and cannot be sustained. Section 65-A, Sub-section (4) (a) says in respect of a protected thekadari tenure, as follows :