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D.M. Jacinto Vs. J.D.B. Fernandez - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 493 of 1937
Judge
Reported inAIR1939Bom454; (1939)41BOMLR921
AppellantD.M. Jacinto
RespondentJ.D.B. Fernandez
DispositionAppeal allowed
Excerpt:
.....sub-section (2)-decree for partition of lands paying assessment to government-application to send decree to collector-whether any period of limitation applies to such application-practice.;the words 'where there has been an appeal' in the last column of article 182 of the indian limitation act, 1908, mean an appeal from the decree sought to be executed and not an appeal from another decree, though made in the suit.;where in a decree for partition the court makes an order, under sub-rule (1), of order xx, rule 18, of the civil procedure code 1908, for partition of lands assessed to government revenue between plaintiff and defendant in certain shares by the collector, and directs that the parties be put in possession of their shares, the court's duties are finished, and it is for the..........of lands assessed to government revenue, the court makes such an order as was made in this case decreeing partition and directing the parties to be put into possession and referring it to the collector to carry out the partition. when an order in that form is made the court's duties are finished, and it is for the collector to partition the property and put the parties into possession. i am told by counsel that it is the practice in the mofussil, when an order of that nature is made, for the parties to apply subsequently to the judge to send the decree and the papers to the collector, and that the form of the application is that of an ordinary darkhast, and my learned brother agrees that there is such a practice in the mofussil. if that is so, i have no desire to interfere with the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal from a judgment of the Assistant Judge of Thana, which purports to raise a question of limitation, but to my mind really raises a question of practice in execution. The point arises in this way. In 1924 there was a suit for partition of immoveable property, part of it being house property, and part of it being property subject to assessment to Government revenue. That being so, the two classes of property had to be dealt with respectively under Sub-section (2) and sub-section (1) of Order XX, Rule 18, of the Civil Procedure Code. Accordingly, on May 27, 1925, an order was duly made under that rule partitioning the property between the plaintiff and the defendants in certain shares, and directing that the plaintiff be put in possession of his share. Then it was directed that the partition of the lands assessed to. Government revenue be effected by the Collector, and of the other property by a commissioner to be appointed by the Court. That order, therefore, was a final decree as to the property assessed to Government revenue, the actual partition to be carried out by the Collector, and it has been held by this Court in Parbhudas Lakhmidas v. Shankarbhai I.L.R. (1887) 11 Bom. 662 that where the Collector is making a partition, in a case of this sort, under Section 54 of the Code and Order XX, Rule 18, it is his duty to put the parties! into possession of the shares allotted to them. As to the house property the order was clearly a preliminary decree. Then on April 2, 1930, the Court made a final decree in respect of the house property based on the partition recommended by the commissioner. From that final decree of April 2, 1930, there was an appeal which was disposed of on January 16, 1931. Then the application out of which the present appeal arises, which purports to be a darkhast application, was filed on January 9, 1934, that is to say within three years of the disposal of the appeal, but much more than three years after the date of the order of 1925. The application relates only to the property assessed to Government revenue, and the point taken is that the application is barred under Article 182 of the Indian Limitation Act. Both the lower Courts have held that that article does not apply, because the application was brought within three years from the disposal of the appeal. They have taken the view that the decree of 1930 and the decree of 1925 were really parts of the same decree, and, although the appeal only related to the house property, which alone was dealt with by the decree of 1930, nevertheless it is not necessary, in order to bring into operation the reference to an appeal in Article 182, that the appeal should be from the whole of the decree. That, I think, would be so. But the answer to that reasoning in this case is that it is not a question of appealing from a part of the decree. There are here two distinct decrees. The decree of 1930 is a final decree relating only to the house property, and, in my opinion, the filing of an appeal against that decree can have no application whatever to the period of limitation applicable to the execution of the decree of 1925. It is perfectly plain on the language of Article 182 that the words 'where there has been an appeal', in the last column, mean an appeal from the decree sought to be executed, and not an appeal from another decree, though made in the suit. I am unable, therefore, to agree with the reasoning of the lower Courts.

2. But, I think, the lower Courts were right in holding that the application is not barred because, in my opinion, this is not, when properly construed, an application in execution at all. As I have already pointed out, when an order is made for partition of lands assessed to Government revenue, the Court makes such an order as was made in this case decreeing partition and directing the parties to be put into possession and referring it to the Collector to carry out the partition. When an order in that form is made the Court's duties are finished, and it is for the Collector to partition the property and put the parties into possession. I am told by counsel that it is the practice in the mofussil, when an order of that nature is made, for the parties to apply subsequently to the Judge to send the decree and the papers to the Collector, and that the form of the application is that of an ordinary darkhast, and my learned brother agrees that there is such a practice in the mofussil. If that is so, I have no desire to interfere with the practice, which may very possibly have some convenience which is not apparent to me. I should have thought myself that the Court would send the papers to the Collector without being asked ; but, if it is found convenient for the parties to ask the Judge to send the papers to the Collector, there is no objection to that practice continuing, and, if the parties choose to make the application in the form of an ordinary darkhast, I see no particular objection. But the form of the application cannot determine its true nature, and, in my opinion, in a case of this sort there is nothing for the Court to execute. Asking the Court to send the papers to the Collector is really asking the Judge to do a ministerial act. The Judge himself is the person to send the papers to the Collector, and he cannot be asked to make a judicial order on himself or his clerk. I think that the parties themselves and the Judge really appreciated this difficulty, because the order which the learned Judge made was that the execution be transferred to the Collector for effecting partition of the lands under Section 54 of the Civil Procedure Code, which is in effect precisely the order which had been made in 1925, and there was no necessity to repeat the earlier order. The application made by the plaintiff prays that out of the lands shown in the schedule one-fifth be given in possession of the plaintiff after the same have been partitioned by the Collector by metes and bounds. That again is really asking for an order in the terms of that made in 1925. All that the parties really want is a direction to be given by the Judge to his office to send the necessary papers to the Collector, and, in my opinion, there is no article of limitation relating to an application of that sort. The appeal must be dismissed with costs.

N.J. Wadia, J.

3. I agree.


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