MT. LAXMIBAI Vs. TUKARAM

JUDGEMENT

(1.) 1. The facts leading to this application for revision are very preuliar. On 5th February 1918 a preliminary decree for partition was passed declaring the shares to which the parties were entitled in the property which is the subject of the litigation and appointing one Mr. Mojamdar to effect the partition and report the fact of his having done so on. or before 6th April 1918. On 30th November 1918 Mr. Mojamdar was removed and Mr. Dabir was appointed commissioner in his place. The order sheet of 11th January 1919 states that the commission did not issue as plaintiff did not deposit the commissioner's fee and because the case was pending unnecessarily for a long time and could not be shown as disposed of until the final decree was passed, the Court proceeded to use the form of the final decree and signed it. The form of the decree is left blank in several particulars and therefore it could not be said that a final decree for partition followed the preliminary decree in the eye of the law.

(2.) ON 18th July 1927 the plaintiff moved the trial Court for the appointment of a commissioner to partition the property in terms of the preliminary decree. This application was resisted on various grounds but was allowed by the lower Court which appointed a commissioner and directed him to make the partition. Against this order the present application for revision is filed.

(3.) THE next contention advanced is that the application dated 18th July 1927 was barred by time under Article 181, Lim. Schedule. But since under the terms of the preliminary decree itself the Court had to appoint a commissioner and get the partition effected though him, the application of the plaintiff reminding the Court of its duty in the matter could not be treated as an application falling within the purview of Article 181, Lim, Schedule. In Kylash Goundan v. Ramasawmi Ayyar [1882] 4 Mad. 172 it is laid down that the provisions of the Limitation Act, though in their terms doubtless most extensive, must be held to apply to applications for the exercise, by the authority to which the applications are addressed, of powers which it would not be bound to exercise without such application, and not to applications to the Court to do what it has no discretion to refuse, nor to applications for the exercise of functions of a ministerial character. For the above reasons the application for revision is dismissed with costs. Pleader's fee Rs. 15.