RAM NATH RAI Vs. HARENDRA KUMAR RAI

JUDGEMENT

(1.) Some of the cosharer defendants in a partition suit in which a final decree was passed under which they obtained an allotment, there having been a separate allotment in respect of each of the other sets of cosharers of whom the plaintiffs were one, applied for possession of their allotment in execution of the decree. The decree was passed in 1916 and there was an amendment of it in 1918, but with that we are not concerned. The plaintiffs "applied for and obtained delivery of possession of their allotment in 1928. On 21 August 1929 the present application for execution was filed. Objection was taken on the ground of limitation. It was overruled by the Munsif, but has been upheld by the District Judge. The applicants for execution have then preferred this appeal.

(2.) The Munsif held that the application of the plaintiffs decree-holders saved limitation. He relied upon the decisions of this Court in Khoorshed Hossein V/s. Nubbee Fatema [1877] 3 Cal. 55l and Mohun Chunder V/s. Mohesh Chunder [1883] 9 Cal. 568. The District Judge has held that the decree having specified portions of the subject-matter deliverable to each party or group of parties an application by one party or group does not benefit the others within the meaning of the explanation to Art. 182, Schedule 1, Limitation Act.

(3.) In the case of Sheikh Khoorshed Hossein V/s. Nubbee Fatema [1877] 3 Cal. 55l, the decree concerned was a decree of 1871, and there were only two sharers parties to the decree. It is possible to understand that decision as being based upon the conclusion of the learned Judges that it was impossible to hold that in a case like that execution proceedings taken either by one shareholder or by the other were anything but proceedings on account of both the shareholders. The learned Judges observed: The necessary result of those proceedings was to divide of the share of the defendant, and while this was going on at the instance of the plaintiff it would have been merely superfluous for the defendant to have put in an application to have the same thing done at her instance.