1. This is an appeal from an order in execution in a suit for partition between two step-brothers. A decree was passed on March 19, 1915, which provided that the plaintiff should recover his half-share in certain properties which had been alienated by defendent No. 1 on payment of Rs. 9,475 to defendant No. 4, who was one of the alienees. At the end of the decree there was a post-script providing that it should be within the choice of the alienees to demand the whole amount that was due to them and give the whole property into the plaintiff's possession when it was so paid, or to give the plaintiff his half-share in the properties on taking half of what was due to them, There was an appeal against this decree to the High Court, but it was confirmed on August 28, 1917. On August 26, 1920, the plaintiff put in a darkhast, in which he sought to get possession of the properties in the possession of defendant No. 4 first, and said that he would pay the amount due to that defendant after getting possession. Although this was obviously an application not in accordance with law, because it asked that the decree should be executed in a manner not provided for by the decree, and although this point was raised by the defendant, the Court nevertheless did not reject the application, but on April 4, 1921, made an order to the effect that the applicant, that is plaintiff, was not entitled to get his share in the properties in question unless he paid the sums charged thereupon by the decree. From that date onwards the proceedings went on as regards the other defendants, but nothing further was done as against defendant No. 4.
2. On January 23, 1926, the plaintiff put in the application, Exhibit 109. In this application ho made various proposals, for instance, that the properties should be given to him and that he should have permission to sell some of them privately, that defendant No. 4 should be called upon to purchase one of the properties at the proper price and release the rest, and that certain properties should be sold by the Court and the purchase price given to the creditors, i.e., the alienees. But here again, as in the original darkhast of August 26, 1920, no request was made which the. Court was competent to grant as being within the terms of the decree. On July 6, 1926, a further application was made by the plaintiff in which, for the first time, he asked that the alienees, including defendant No. 4, should be called upon to state whether they required the whole amount or half thereof to be paid. On their doing so, the plaintiff stated, he would arrange to secure the money and pay it into Court. On August 31, 1926, the Court made an order that the alienees present should inform the Court about their election, and on the same date the order giving rise to this appeal was passed. In this the Subordinate Judge considered various contentions raised by the alienees to the procedure followed by the plaintiff, and decided that, as the decree has not specified any time for the payment of the money, therefore the plaintiff was entitled to call upon the alienees to elect and to pay the money at any time, provided his application in that behalf was kept within limitation by the continuance ' of the darkhast filed on August 26, 1920. To quote the judgment :
There was an order to pay the alienees as per their choice in the decree . but: there was no time limit fixed to it and hence he could have put them to election at any time. Further even if he was held time-barred there would be the remedy of a second suit. Hence I hold that there was no time limit fixed in the preliminary decree and the applicant plaintiff may proceed to force the election at any time. Even if he was bound to do so within any limitation period of three years this Darkhast was given in time as against all the alienees and there is no need for him to have applied against the alienees within three years of the order of the year 1921. One proceeding is going on and the plaintiff was trying to execute the decree as best he could.
3. In the result execution was ordered to proceed.
4. It is difficult to understand what the learned Subordinate Judge means by stating that there was no time limit for the execution of the decree. It is obvious, and has been conceded, that an application for execution had to be made within three years as provided in Article 182 of the Indian Limitation Act. There is some discussion in the learned Subordinate Judge's order as to whether this decree ought to be regarded as a preliminary decree or a final decree for partition. That question appears to me to be quite immaterial, because whether the decree were to be regarded as preliminary or final, it was obviously a decree which required to be executed and the steps necessary for execution had to be taken within the period of limitation. When the learned Subordinate Judge says that the application was in time by reason of the continuance of the original darkhast filed on August 26, 1920, he appears to have over-looked the exception to Article 182, which makes it clear that any proceedings which were going on as against other defendants could not save limitation as against defendant No. 4, It has been argued that until the alienees made their election the plaintiff was not in a position to know how much he had to pay. But the decree threw on him the duty of making certain payments as a condition precedent to his getting possession of certain properties, and, obviously, if he desired to know how much he had to pay, it was his duty to ask. We consider that the decree in question could only be executed as against defendant No. 4 by an application to deposit the money which the decree required the plaintiff to pay, or one calling on the defendant to make the election as the decree provided. An application of one kind or the other the plaintiff was bound to make within three years of the confirmation of the decree by the High Court, or at the latest within three years of the Subordinate J Judge order of April 4, 1921. As a matter of fact no such application was made until July 6, 1926, and that application, in our opinion, was clearly out of time.
4. The result of this finding is that the appeal is allowed with costs, the order of August 31, 1926, directing execution to proceed against defendant No. 4 is set aside, and the execution. proceedings as against defendant No. 4 are dismissed with costs.