GOVINDDAS RAJARAMDAS DEVI Vs. GANPATDAS NARROTTAMDAS

JUDGEMENT

(1.) This is an appeal from the order of the Subordinate Judge dismissing the plaintiff's Darkhast as time-barred. The decree was a partition decree passed on June 80, 1906. Some of the suit properties were partitioned by the Commissioner, but it seems that with regard to the house, the subject-matter of the present Darkhast, the parties thought that they might arrive at a settlement, with the result that it remained unpartitioned. The last Darkhast No. 193 of 1915 taken out by any of the parties was dismissed on September 12, 1917. That was a Darkhast by defendant No. 1, and it had nothing to do with the partition of the suit properties. The defendants appeals to the High Court against the orders passed in that Darkhast and on plaintiff's Darkhast No. 428 of 1918 were decided on March 1, 1920. The present Darkhast was presented on October 4, 1920, and unless time can be computed from March 1, 1920, the present Darkhast is clearly time-barred.

(2.) In Nand Kishore V/s. Sipahi Singh (1904) I.L.R. 26 All. 608 it was decided that the prosecution of an appeal from an order made in the course of a proceeding in execution of a decree could not be looked upon as an application in accordance with law to the proper Court for execution or to take some steps-in-aid of execution within the meaning of Art. 179 of the Second Schedule to the Indian Limitation Act of 1877. The decision in Kristo Coomar Nag V/s. Mahabat Khan (1880) I.L.R. 5 Cal. 595 was followed. We agree with these decisions.

(3.) It certainly cannot be said that an appeal to the High Court against an order in a Darkhast is an application in accordance with law to the proper Court for execution. The High Court is not a Court whose duty it is to execute decrees passed by the lower Courts. So the Darkhast in this case was time-barred. The plaintiff has only himself to blame that the house has not been partitioned, since the decree was passed in 1906. Now he can either come to an arrangement with the defendant for partition of the house or he can file another suit.