1. This appeal relates to the execution of what purports to be a partition decree passed on 9-12-1901. It was passed under the former Code and it awarded to plaintiff and each of the five defendants, one share in the suit property, that share to be ascertained. The course taken by the subsequent, proceedings was that on plaintiff's application, the six shares, into which the property was to be divided, were ascertained: but no allotment or delivery was made, except of one share to plaintiff. Later 4th defendant applied for allotment and delivery to him of his share and obtained allotment, but not delivery, the latter being ordered only on his filing a second petition E. P. No. 439 of 9-4-1912. The 3rd defendant here appellant-sued on 9-12-13 to obtain his share. But the Appellate Court directed that his plaint should be treated as an application in execution; and it is with his application regarded as having been presented on 9-12-1913 that we have to deal. The main objection to it is that it is out of time with reference to the three years rule.
2. Third defendant's first answer to this objection is that the decree cannot be regarded as having been passed in his favour until the ascertainment of his share is complete; and it will not be complete until his present application is disposed of. Shortly there can be no question of execution being barred against him, when the suit, so far as he is concerned, is still pending, Krishnamachariar v. Kuppammal I.L.R. (1908) M. 540 however negatives this contention; and we must therefore deal with the objection more closely and with the alternative answer attempted, that the decree was passed in favour of several persons jointly within the meaning of explanation 1 Article 182, schedule 1 of the Limitation Act and that 3rd defendant can therefore count time from the last application for execution by another of those persons, namely, from E. P. No. 439 by 4th defendant for delivery of his share on 9-4-1912.
3. It is urged and it is no doubt the case that 4th defendant's application for delivery was not made by him in any sense jointly or to enforce any joint right to relief or for the benefit of his fellow decree holders jointly with himself : and in fact it was made by him severally distinguishing the portion of the subject matter deliverable to him and so far could have been made with propriety in execution of a several decree, as such a decree is defined in the earlier part of the explanation. But although there may be some anomaly in the succession of the different kinds of execution appropriate to joint and several decrees, which is involved, it does not follow that the description of the decree for the purposes of the application of Article 182 must be altered. That description attaches for those purposes in the words of the explanation 'when the decree has been passed', and in the absence of provision to the contrary it must be applied once for all and to the decree as a whole and for all purposes. This view is consistent with the decisions in Sheik Khoorshed Hussain v. Numbee Fatima I.L.R. (1878) Cal. 551 Mohan Chunder Kurmokar v. Mohesh Chunder Kurmokar I.L.R.(1883) Cal. 568 and Narayan Ramachandra v. Vithal Sakharam 5 Bom. P.J. 325 The decree before us must therefore for the present purpose be regarded as a joint decree; and its execution must be subject to the second portion of the explanation to Article 182.
4. The 3rd defendant's application being in time, the remaining objection is, that it is for ascertainment and delivery not only of his own share, but also of that of 5th defendant, alleged to have been transferred to him under Exhibit A, and that as regards the latter he has no transfer of 5th defendant's right to execute. It is not necessary for us to consider how far a transfer of property carries with it generally the right of the transferor to execute a decree for its possession. For, in the present case, Exhibit A clearly refers to 5th defendant's right under the decree and we are prepared to regard that right as transferred with the property itself. The question whether Exhibit A evidences a transfer enforceable on its merits to 3rd defendant alone has not so far been dealt with by the lower appellate Court.
5. We therefore, allow the appeal against appellate order, set aside the lower appellate Court's order and remand the appeal to it for disposal on the further question above referred to and in the light of the foregoing. Costs to date here and in the lower Courts will follow the result and be provided for in the Lower Appellate Court's order.