BHOLANATH NAIK Vs. KRUPASINDHU NAIK

JUDGEMENT

(1.) THE point involved in these three miscellaneous appeals filed by decree-holders is limitation. These appeals arise out of certain execution cases filed by 3 decree-holders (plaintiff and legal representatives of defendant No. 3 and defendant No. 6) for recovery of possession of their respective allotments under a final decree made in a partition suit.

(2.) IN 1927 the plaintiff filed a partition suit O. S. No. 35 of 1927 in the Court of the Subordinate Judge Berhampur. On March 30, 1929, preliminary decree was passed in the partition suit, which ultimately went to the Privy Council. On April 16, 1936 a receiver was appointed by the Subordinate Judge under an order of the high Court dated March 16, 1936. A pleader of Aska was appointed as receiver. On aug. 23, 1947 final decree was passed in the partition suit. There was an appeal to the High Court F. A. No. 691 of 1949 which was dismissed by the High Court on november 10, 1955. The receiver was throughout in possession and continued to remain in possession until he was discharged on September 4, 1958.

(3.) ON September 2, 1961 the three decree-holders appellants herein filed execution cases E. P. Nos. 93, 94 and 96 of 1961 for recovery of possession of their respective allotments under the final decree. Some of the judgment-debtors filed objections MJC. 193, 194 and 196 of 1961, on that ground that the said execution cases were barred, by limitation under Article 182 of the Limitation Act, as not having been filed within three years from November 10, 1955 when the appeal from the final decree F. A. No. 69 of 1949 was dismissed by the High court. It was also objected that the execution cases are not maintainable because there was adjustment of shares outside Court.