SARJUPRASAD Vs. DEOKI SINGH

JUDGEMENT

(1.) This is a second appeal from an order of the learned District Judge of Gaya in an execution matter. The decree-holders, who are respondents in this appeal, brought proceedings claiming partition of an estate. A preliminary decree was passed which was eventually made final. Four takhtas were prepared and allotted to the respective parties and one plot of land was left joint between the parties. The date of the final decree in this partition suit is 26 October 1923. On 22nd December 1936, the decree-holder-respondents filed an execution application praying for delivery of possession of the takhta allotted to them. It is to be observed that this application was made more than three years after the date of the partition decree; but it is common ground that during the interval two of the interested parties had made applications in execution and had obtained possession of their respective takhtas.

(2.) If these two applications enure for the benefit of all the parties, then it has to be conceded that the application of the decree-holder-respondents was within time. In the execution case filed on 22 December, 1936, the decree-holders impleaded all the parties to the partition suit, but only the present appellants raised an objection, On 27 September 1937, the appellant Sarju Prasad filed an objection praying that the execution case be dismissed on the ground that it was barred by limitation. It is to be observed that in this objection the appellant Sarju Prasad impleaded only the present decree-holder- respondents.

(3.) He did not implead the other parties to the partition proceedings. This objection was treated as separate miscellaneous case and numbered Miscellaneous Case No. 99 of 1937, and in due course, this miscellaneous case was heard and determined by the learned Subordinate Judge. He held that the previous application in execution did not enure for the benefit of the decree-holder- respondents, and accordingly he came to the conclusion that their application for execution was barred by limitation in that it was presented beyond the period of three years from the date of the partition decree. On appeal the learned District Judge was of opinion that the execution application was not barred by time and reversed the decision of the Court below. It is against the order of the learned District Judge that the present second appeal has been filed.