MUHAMAD SAHOOB LEVAI SAYABU Vs. MAYAMAD AMMAL

JUDGEMENT

(1.) This is an appeal by the 1 defendant, against the 2nd defendant in a suit for partition brought by the plaintiff who is not a party to this appeal. The parties are Muhammadans and partition was decreed to plaintiff 3-16ths, to 1 defendant (appellant) 10-16ths and the 2nd defendant (respondent) 3-16ths. The preliminary decree was passed on October 2, 1921, declaring these shares and directing a Commissioner to make a partition by metes and bounds of the properties among the parties according to their shares. The Commissioner did so and the final decree, was passed on November 14, 1924, providing inter alia that the several properties mentioned in Schedule II hereto be assigned to and they are hereby vested in the several parties under whose name the said properties are respectively set out absolutely, for and in full satisfaction of their respective shares and interests, in the suit property. According to the plan prepared by the Commissioner the plaintiff was entitled to the plot B, the 1 defendant to plot C and the 2nd defendant to plot A. On January 6, 1926, the plaintiff applied for and obtained delivery of his share. On October 12, 1928, the 2nd defendant applied in execution for delivery of the plot A. The appellant 1 defendant opposed the, application. His grounds were, as state by the learned Subordinate Judge in the lower Appellate Court (l) that there is no executable decree passed in favour of the 2nd defendant which is capable of being worked out in execution, (2) that the lower Court had no jurisdiction to pass a decree in favour of the 2nd defendant- respondent because the subject-matter of the suit related only to partition and separate possession of the, plaintiff's share alone and (3) that, in any case, the 2nd defendant's application is time-barred as the decree in question cannot be said to be a joint decree within the meaning of explanation (1) to Art. 182 of the Limitation Act, The learned Judge rejected all these objections. They have been urged before me again.

(2.) As to the first objection, whether there is or is not an executable decree in favour of the 2nd defendant-respondent, the words of the decree which I have already set out are conclusive. They mean that the plot A set out under the name of the respondent was assigned to and vested in the respondent in full satisfaction of his share in the joint property. The only object of such a provision is that the party to whom the plot is assigned may be able to get it if he satisfies the other conditions for getting it, which include usually, if the party is not the plaintiff, payment of court-fees. This point fails.

(3.) The second objection is also equally futile. The court fails plaintiff's suit for partition has undoubtedly jurisdiction to award the other sharers their shares if they want to avail themselves of such a decision. In any case the appellant's objection to the decree cannot be heard in execution a.si this is sufficient to dispose of it. The learned Advocate here for the appellant tried to raise another objection under this heading, namely, that the decree is invalid because it does not bear the proper revenue stamp as an instrument of partition under the Stamp Act. I asked him whether he could show me from the judgments of the courts below that those courts had dealt with or were invited to deal with it. He has not shown me anywhere that this objection -was raised at any previous stage of this proceeding and I therefore decline to allow that objection to be taken here.