SARJU PRASAD Vs. BALDEO PRASAD

JUDGEMENT

(1.) This is a decree-holders appeal against an order of the Subordinate Judge, first Court, Patna, dismissing his application for execution of a partition decree as barred by limitation. The relevant dates are 28 October 1938, when the preliminary decree was passed, and 10 August 1939, when the decree was made final. The decree was passed in a Court at Gazipur, and the present execution has been filed in the Court at Patna, obtaining an order of transfer of the decree for execution from the Court that passed the decree on 13 November 1942. An objection was taken on behalf of the judgment-debtors that the petition for transfer having been filed more than three years after the date of the final decree it is barred by limitation, and the learned Subordinate Judge has found in favour of this contention, and dismissed the execution case as time barred.

(2.) On behalf of the decree-holder-appellants reliance is placed upon Part 2 of Expln. 1 to Art. 182, Limitation Act. His contention is that this was a partition suit in which the properties were divided into several allotments and given to different parties as appertaining to their shares but some of the properties were not divided by metes and bounds, but in respect there, of only the shares of the parties were defined, and they were left joint. Therefore, the decree that has been passed is one which is passed jointly in favour of several persons and jointly; against several persons. Therefore, if any one of the parties interested in this decree has filed an execution petition or has taken any step-in-aid of execution in accordance with law within the meaning of Clause (5) of Art. 182, in time that would enure for the benefit of all the decree-holders and will operate as against all the joint judgment-debtors in order to save limitation.

(3.) Learned Counsel for the appellants urges that there are two items of properties in respect of which such joint decree or order can be said to have been passed. One is with regard to articles of mahfil in Schedule 1(a) of the plaint in Suit No. 1 of 1988, in respect of which it is said that half the share in 4 pairs of shawls and 2 moongamalas should be allotted to Mahadeo Prasad and others, and one-fourth share should go to Baldeo Prasad, defendant in the suit, and another one-fourth should go to Sarju Prasad and others who are decree-holder- appellants. The second item of property with regard to which learned Counsel claimed that there was a joint decree is a residential ancestral zanana house situated at Bahadurganj. With regard to this house it is mentioned in the decree that each party will get half the share, one towards the east and the other towards the west, and it is not very clear on the face of the allotments stated in the decree whether this property has been left joint. However, leaving this question open, it is quite clear that at least with regard to one item of property mentioned above a joint decree within the meaning of Expln. 1 to Art. 182 has been passed in favour of several decree-holders and as against several judgment-debtors jointly.