S.K. Ray, J.
1. This is an appeal preferred by the judgment-debtor from the decree of the District Judge, Jeypore, dated 17-12-65 passed in Civil Misc. Appeal No. 2/63 reversing the order of the Subordinate Judge, Jeypore, dated 19-12-64, and rejecting the objection of the judgment-debtor appellant made under Section 47 of the Code of Civil Procedure in an execution proceeding (E. P. No. 54/64), levied by the decree-holder for executing her decree for maintenance.
2. To understand the implications of the points raised in this appeal, it is necessary to recount in brief the historical background of the litigation leading to the execution proceeding started by the respondent in E. P. No. 54/64.
3. One Bikram Raj had four issues. The first two issues were sons by name Prithwiraj and Ramakrishna. The last two issues were daughters by name Nak-hyatramala Babi and Kautuka Babi. Upon the death of Bikramraj, Ramakri-shna filed a partition suit, T. S. 8/55 against Prithwiraj as defendant 1 in the court of Munsif of Jeypore in which Nakhyatramala was impleaded as defendant 2 and Kautuka as defendant 3. These defendants 2 and 3 claimed maintenance in the said suit, and that the same should be made a charge on the family property. A preliminary decree for partition was passed on 16-11-55 (the date of judgment was 8-11-55). While decreeing the suitfor partition, it was directed in the said decree that defendants 2 and 3 were entitled to maintenance at the rate of eight putties of paddy and Rs. 40/- per annum and it was made a charge on immovable property in suit described in the plaint schedule.
From this decree two appeals were preferred. One was by the plaintiff which was numbered as T. A. No. 76/55. The main relief claimed in this appeal was against defendant 1 and has no present relevancy. The other was preferred by the two daughters, defendants 2 and 3, which was numbered as T. A. No. 1/56. This appeal of the daughters was concerned with the quantum of maintenance only. Both the appeals were disposed of by one common judgment dated 5-5-59. In the ordering portion of this judgment it was said: '. . . .A preliminary decree is passed declaring half share of each of the plaintiff and the defendant No. 1 in the suit properties except the second-storey building on the ancestral house and another building mentioned in item No. 7 in the plaint schedule which respectively belong to the plaintiff and defendant No. 1. . . .A Civil Court Commissioner shall be appointed in proper proceedings if applied for by either of the parties in the trial court to effect partition of the properties as mentioned above by metes and bounds after which and after hearing objections if there be any to the allotments made by the Civil Court Commissioner, a final decree shall be passed accordingly.
Each of the defendants 2 and 3 shall be entitled to maintenance from the date of partition at the rate of 10 putties of paddy and Rs. 48/- per annum which shall remain a charge on the joint family property. As the two brothers are to maintain the two sisters, the liability of maintaining the sisters may also be divided at the discretion of the trial court between the two brothers, so that each of them would be liable to maintain one sister.'
Accordingly two decrees were drawn up, one in respect of each appeal. The decree in the daughter's appeal No. 1/56 incorporated verbatim the directions contained in the last para of the ordering portion of the common judgment quoted above. Thereafter the matter remained pending in the trial court for passing of the final decree.
While the litigation was at that stage both the defendants 2 and 3 filed an application before the trial court on 16-3-60 praying that the maintenance due to them be ordered to be paid to them by the plaintiff and defendant 1. This prayer was countered by the brothers. On this application, the following order was passed on 3-7-61 and it runs as follows:
'Read the petition filed by defendants2 and 3 on 16-3-60. They pray that the maintenance due to them be ordered to be paid by the plaintiff and defendant No. 1. The first defendant has filed a counter stating that under the decree the petitioners, that is, the defendants 2 and3 are entitled to maintenance only from the date of the partition and not before, and since partition has not yet been made, the petition is liable to be rejected as premature.
T. A. 76/55: The decree of the first appellate court in T. A. No. 1/56 so far it relates to the question of payment of maintenance to defendants 2 and 3 has become final. The portion of the decree provides that defendants 2 and 3 shall be entitled to maintenance from the date of partition at a particular rate. We are not here concerned with the rate of maintenance because that is not in dispute, but we are very much concerned with the time from which maintenance accrues due under the decree. The date of partition has been specifically mentioned in the decree as the date from which maintenance shall become due to defendants 2 and 3. That being the date of accrual of maintenance, the present petition does not lie now as partition has not yet been effected. The petition is therefore rejected.'
The quoted order shows that the petition of the daughters for maintenance was ultimately rejected as not maintainable at that stage.
The daughters did not take any step to reverse or set aside the said order and awaited passing of the final decree. The final decree was passed on 7-11-62. The relevant portion of the decree touching the rights of the two daughters is quoted hereinbelow.
'It is further ordered that defendants 2 and 3 are entitled to maintenance at the rate of ten putties of paddy and Rupees 48/- per annum. The liability to maintain defendant 2 is made a charge on the property allotted to the plaintiff and the liability to maintain defendant 3 is made a charge on the property of defendant 1 specified above. It is accordingly ordered that the plaintiff shall maintain defendant 2 and defendant 1 shall maintain defendant 3'.
Thereafter defendant 3 Kautuka levied execution in E. P. No. 54/64 on 15-4-64. She claimed her maintenance from the date of preliminary decree up-to-date. The judgment-debtor Prithwiraj filed objection on 28-10-64. His stand was that he was liable to pay the maintenance under the decree from 9-7-63 when the properties were divided actually by metes and bounds. Upon this, a Misc. Case was started which was numbered as M. J. C. No. 125/55.
The Subordinate Judge disposed of this matter by his order dated 18-12-64 in which he held that the liability of Prithwiraj, the judgment debtor, arose from 7-11-62 the date of final decree. He negatived the contention of the decree-holder on two grounds: The first was that though in law filing of a suit for partition or serving a notice for partition amounts to severance of joint status, yet in the present case the decree-holder being the maintenance-holder and not being entitled to severance of joint status by any act of her own, the date of filing the suit cannot be considered to be the date of partition for the purpose of deciding whether her claim for maintenance is to be deemed to have accrued from that date. The brother who is the judgment-debtor being under no personal liability to maintain her, which arises only under a decree, her claim for maintenance must be deemed to have accrued from the date of final decree under which the right to a certain amount by way of maintenance was for the first time determined and not before. The second ground was that the order dated 3-7-61 of the Munsif passed on an application by the daughters for maintenance while proceedings for final decree were pending, operates as res judicata and, hence, her present claim to the period prior to final decree is not maintainable in law,
4. The decree-holder appealed to the District Judge, Koraput-Jeypore. Her appeal was numbered as Civil Misc. Appeal No. 2/65. She succeeded. Both the grounds on which her claim was rejected by the executing court were reversed. The judgment-debtor, it may be noted, has paid all arrears of maintenance to the decree-holder from 7-11-62.
5. The very two points which were urged on behalf of the judgment-debtor before the executing court with success have been repeated here.
6. The first question, therefore, is as to from which point of time the claim for maintenance of the decree-holder has been decreed. A preliminary decree dated 8-11-55 granted maintenance at a particular rate in favour of the defendant and declared the same to be a charge on the immovable property in suit. By this the liability of plaintiff and defendant 2 was declared to maintain their sisters defendants 2 and 3 and the quantum of maintenance was also fixed. The daughters in their appeal challenged only thequantum and the other appeal by the plaintiff did not attack this part of the decree.
7. The appellate court decree was a preliminary one and superseded the trial court decree and provided that defendants 2 and 3 were entitled to maintenance from the date of partition at enhanced rate.The question is what is the extent of supersession regarding the accrual of the right of maintenance. Normally, adjudicated rights in a decree become effective from the date of suit or at any rate from the date of decree unless otherwise provided for therein. Under the preliminary decree of the trial court maintenance was claimable at least from the date of that decree, i.e. 8-11-55. The appellate court decree, however, directed that liability to pay maintenance would arise from the date of partition, and while so decreeing it, provided that partition by metes and bounds would be made when applied for, either by the plaintiff or defendant No. 1. If the date of partition meant the date of partition by metes and bounds, the maintenance decree was liable to be defeated, if plaintiff and defendant No. 1 joined hands to defeat the claim of their sisters by desisting from applying for final decree. It would, therefore, be unreasonable to attribute to the expression 'date of partition' the meaning contended for by the learned counsel for the appellant. The decree of the lower appellate court must be construed consistently with what partition means in Hindu Law and as judicially interpreted.
Partition in the Hindu Law consists of defining shares of coparceners in the joint property and the actual division of property by metes and bounds is not necessary. In this sense, the date of partition will mean the date when there is disruption of joint status amongst the coparceners resulting in numerical division of the property. The determination of quantum of shares of respective coparceners is a subsequent act of the Court. Upon such determination the coparceners are to be allotted their defined shares with effect from the date of severance of joint status. Such determination of shares amounts to working out the result of severance.
This question came to be considered by the Supreme Court in the case reported in AIR 1958 SC 1042. This is what their Lordships said in that case:
''Under the Mitakshara law, the right of a coparcener to share in the joint family properties arises on his birth, and that right carries with it the right to be maintained out of those properties suitable to the status of the family so long as the family is joint, and to have a partition and separate possession of his share, should he make a demand for it. The view was at one time held that there could be no partition, unless all the coparceners agreed to it, or until a decree was passed in a suit for partition. But the question was finally settled by the decision of the Privy Council in Girja Bai v. Sadashiv Dhundiraj, 43 Ind. App. 151 : (AIR 1916 PC 104) wherein itwas held on a review of the original texts and adopting the observations to the effect in Suraj Narain v. Ikbal Narain, (1912) 40 Ind App 40 at p. 45 (PC) that every coparcener has got a right to become divided at his own will and option whether the other coparceners agree to it or not, that a division of status takes place when he expresses his intention to become separate unequivocally and unambiguously, that the filing of a suit for partition is a clear expression of such an intention and that in consequence, there is severance in status when the action for partition is filed. Following this view to its logical conclusion, it was held by the Privy Council in Kewal Nain v. Prabhu Lal, 44 Ind App 159 = (AIR 1917 PC 39) that even if such a suit were to be dismissed, that would not affect the division in status which must be held to have taken place, when the action was instituted.
A decree may be necessary for working out the result of the severance and for allotting definite shares but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains a consequential judgment or not.'
According to this rule the date when action for partition is initiated, is the date of severance of status. This, in my view is the date of partition. This date in the instant case would be 14-2-55 when partition action was commenced, because upon communication of the plaintiff's intention to separate to the other coparcener of the family, defendant No. 1, by service of summons the declaration would be complete and would relate back to the date of institution of partition suit (Vide AIR 1964 SC 136). The preliminary decree by trial court was passed on 8-li-55, the date of judgment though a formal decree was drawn on 16-11-55. The terms and conditions of the appellate court decree which superseded the trial court decree must be given operation as if they had been incorporated in the original decree dated 8-11-55. So it is on 8-11-55 that the results of severance of status were worked out and shares were specified and defined. Effects of this decree would also similarly relate back to the dat.e when the plaintiff's intention to separate was formed and expressed, that is, 14-2-55 when plaint was filed subject to the limitation that vested rights, if any, which accrued to others in the joint family property between expression of intention to separate and communication of the said intention to defendant No. 1, will not be affected. Thus, this being the legal position, as I conceive it, what the lower appellate court meant and must be deemed to mean, was that maintenance was payable with effect from the date of filing of partition .suit. If the trial court's decree is liable to a construction that maintenance accrued from the date of passing of that decree, i.e., 8-11-55, then to that extent it must be held to have been superseded by the appellate court decree. Even if it be held that date of preliminary decree (8-11-55) to be the date of partition because shares of coparceners were defined and declared, that would not affect the result of the appeal since the maintenance claim in the present execution is from 8-11-55.
8. The next question to be considered is whether the order of the Munsif dated 3-7-61 operates as res judicata. This order, as already quoted above, was on an application filed before the Munsif in its original jurisdiction and not in its execution side. It was passed while the partition suit was still pending inasmuch as final decree had not been passed. This petition was for payment of some maintenance pending passing of the final decree. It did not purport to execute any decree and it was therefore unnecessary for the Munsif to construe the appellate court decree. The order was not one under Section 47 C. P. C. and that being so, there was nothing in law . which rendered it imperative for the decree-holder to appeal from such order.
Further, the order is ambiguous and does not finally decide any controversy. It says that the petition is premature as 'partition has not been effected'. The appellate court decree to which reference has been made speaks of partitioning liability to pay maintenance between the two brothers and it is, therefore, not clear whether the Munsif refers to this partition of liability or partition of joint family property by metes and bounds. The order is liable to a construction that the claim for maintenance which would accrue from the date of partition would become payable only after the properties had been partitioned by metes and bounds between the plaintiff and defendant 1; it is also prone to a construction that since the direction in the appellate decree to allot the liability of maintaining a sister to each one of the two brothers had not been carried out, the claim for maintenance could not be levied. It did not categorically and unambiguously decide as to from which point of time maintenance decreed is to be computed. Thus, it was an order of ambiguous import and of interlocutory nature which lack- ed the force of a decree and did not purport to dispose of any case finally. In case of orders of such nature which do not have the force of a decree, the principle of res judicata does not apply. Reference may be made in this connection to a decision of Supreme Court reported in AIR 1960 SC 941. In view of all these, I am of opinion that res judicata point is without any substance and must fail.
9. Counsel for the appellant urges for the first time a point of limitation. He says that the claim for maintenance from the date of the preliminary decree till, 1961 or beyond three years preceding the date of execution, that is, 16-3-64, is barred by limitation. That is a point which for the first time was taken here and it had not been taken in the courts below. I am not inclined to entertain such a point at this stage. The execution case is still pending and he may take up that point there, if he is so advised. This point might involva questions of fact which may be disputed fay parties.
10. In the result, therefore, there is no merit in this appeal which is accordingly dismissed with costs.