1. In this case there was a decree for partition of certain properties including a house in Madras which, on appeal to the High Court, was, in 1889, modified by declaring the right of a widow to reside in this house. In 1901, on an application for execution, Shephard, J., returned the application to the District Judge of Chingleput, but no further action was taken in that Court until 1906 when the present application was made.
2. The first question we have to consider is the nature of the decree. That the decree-holder treated it as final and executable, is beyond doubt. He obtained possession of part of the property under it, and it is equally clear to us that the District Court of Chingleput intended the decree to be a final decree.
3. In 1901, no doubt, Shephard, J., expressed an opinion that a Commissioner ought to be appointed, but that view apparently did not commend itself to the appellant's guardian and no action was taken upon the suggestion.
4. It is not until 1906 that the suggestion is made that the decree is still pending, and, that, after an application for execution had just been made. We are not prepared to hold that in every case in which a decree is made for the partition of immovables not paying revenue to Government, it is necessary to appoint a Commissioner under Section 396 of the Civil Procedure Code. That section clearly contemplates a discretion in the Court, and here it is clear that neither the Court, nor the decree-holder, thought that it was necessary to postpone the making of the decree until the house had been actually divided into halves. We do not think the decision in Togaram Appadu v. Patnaidu Togaram Venkata Ranga Rau 18 M.L.J. 23; 3 M.L.T. 328 which was quoted to us, is intended to lay down a rule that, in all cases, a partition decree is to be considered pending until action is taken under Section 396 of the Civil Procedure Code, but, if it is not so intended, we must, with great respect, decline to accept it as correct.
5. We are of opinion that the decree in this case is a final decree.
6. We cannot accept the contention, which, the District Judge says, was practically given up, that this appellant was unable to obtain possession of the house by reason of the widow's residence therein. He could have obtained possession under Section 264 of the Civil Procedure Code. It is contended in the Court below that the bar of limitation is saved by the fact that the appellant attained majority only in 1906. We are unable to entertain that contention now: it depends on a question of fact which should have been established in the Court below if the appellant desired to rely on it.
7. The appeal fails and is dismissed with costs.