GODAI MAHATO Vs. DEBU

JUDGEMENT

(1.) The facts leading up to the present appeal are these: The plaintiff, the principal defendants and some others were cosharer landlords of village Kuluhar which they were holding in common tenancy. Later on there was a partition and a preliminary decree for partition followed by a final decree was passed. Under the terms of the decree the plaintiff among other things got the exclusive right of the realization of rent from the pro forma defendants who are tenants of the village.

(2.) The present suit is based upon the fact that the principal defendants have wrongfully realized rents from the pro forma defendants in spite of the partition decree. The plaintiff seeks a declaration that he is exclusively entitled to the rents payable by the principal defendants and asks for a decree for a refund against the principal defendants for the rents wrongfully realized by Mm. The defence of the principal defendants who are the appellants in this Court is that in spite of the partition decree they had all along been realizing rent from the pro-forma defendants and the plaintiff not having taken execution of the partition decree cannot maintain the suit. Both the Courts have decreed the plaintiff's suit and the principal defendants have preferred this second appeal.

(3.) The main contention in this appeal has been that the suit is barred under Section 47, Civil P.C. It is urged that it is a suit for enforcement of the partition decree which is barred by Section 47 of the Code. Both the Courts have overruled this contention and in my opinion they have done so rightly. The partition decree which is on the record does not purport to divide the land among the various cosharers though practically the effect of the decree may be a division of the land among them. The decree simply entitled the plaintiff to realize the rent from pro forma defendants exclusively. It would have been certainly much better if the plaintiff had taken out a formal execution of the decree, but in my opinion his not having done so does not in the least affect the present suit. I fail to understand how the present suit is barred under Section 47, Civil P.C.