M VASUDEVA MUTHU SHASTRY Vs. MVITTAL SHASTRY

JUDGEMENT

(1.) The only question raised by this appeal is whether the decree is still executable by plaintiff, notwithstanding that his last application in 1910 was made over, three years before his present application in 1919. He alleges that it is, because time runs against him only from the application of 2nd defendant in 1918, with reference to Explanation 1 Art. 182, Schedule I, Limitation Act.

(2.) The decree is for partition, but it is not in the form contemplated by the present Code. For it awards to plaintiff, an aliquot part, specified as one quarter of certain family lands and the profits therefrom and also his costs, the ascertainment of the particular lands and the amount recoverable as profits being apparently reserved for execution. No doubt "such a decree is not like a decree for money or for the delivery of specific property a decree in favour of the plaintiff alone" and "in a suit for partition the decree is in favour of each sharer" Dost Mahomed Khan V/s. Said Begum (1897) I.L.R. 20 All. 81, and again, "It is in consequence of the reciprocal character of the right which co-owners have in the matter of partition that even those who are not actual plaintiffs can claim that their share also be allotted them by the decree". Assan V/s. Pathumma (1898) I.L.R. 22 Mad. 494 : 9 M.L.J. 37. Such descriptions of partition decrees may in some cases justify reference in connection with their execution to the portion of Expl. I to Art. No. 182, which deals with decrees passed jointly against more persons than one, because the family property may be in the hands of or may be recoverable from some or all of the members of the family other than the excluded plaintiff. But that portion of the explanation will be relevant, only if the question is whether an application for execution against one party affords a starting point for time for an application against another and not when, as in the present case, the question is of reliance by one party on an application made by another.

(3.) On that question it is urged for respondent and that the decree before us has not been passed jointly in favour of more persons than one, but severally in favour of each of those concerned, distinguishing the share deliverable to each; and this would appear to be so, because each party is entitled to recover only his own share and that share is not +he less distinguishable from that deliverable to others, because the property comprising each share is regarded as to be ascertained. Shortly, similarity between the rights of each of the parties under a decree will not make it a joint decree in their favour. Order 21. Rule 15 C.P.C. dealing with "a decree passed jointly in favour of more persons than one," that being the wording of the explanation under construction, clearly cannot refer and has never been construed as referring to decrees, like that before us. If these were the only considerations the failure of the appeal would follow.