(1) This appeal against the appellate judgment of the District Judge of South Arcot is preferred by the plaintiff in O. S. No. 304 of 1943.
(2) That was a suit for partition against the respondents and others. A consent decree was passed in that case which was a combination of a preliminary and final decrees. According to the terms of that decree, six items of immoveable properties owned by the parties were directed to be divided with the help of panchayatdars and the plaintiff was to take 1/3rd share, the first defendant 1/3rd share and the remaining 1/3rd share was to go to the other defendants. The date of this decree was 27-10-1944 E. P. No. 220 of 1955, out of which this appeal arises, was instituted by the first defendant for execution of the decree in so far as it related to partition and separate possession of these six items of immoveable properties.
The appellant, who was respondent in that execution petition, put forward the plea that the panchayatdars had effected division of the properties as early as 1948, and the plaintiff, the first defendant, and the other defendants were in separate possession of the properties allotted to them by the panchayatdars and that there was nothing more to be executed in relation to the relief of partition of immoveable properties. Both the lower Courts, without going into the truth of this alleged partition, negatived the contention of the appellant on the ground that this question could not be gone into by the executing court in the absence of a certificate under O. XXI R. 2 C.P.C. In respect of that position the decision in Ramakrishna v. Balakrishna, ILR 43 Mad 476 : AIR 1920 Mad 469 was relied upon.
That decision, of course, lays down that in a decree for partition, if money is payable by one party to the other, such a decree would come within the definition of a decree contemplated under O. XXI, R. 2 C.P.C. and if objection is put forward to execution of that decree even in regard to a matter not related to payment of money, such objection could not be heard, unless the satisfaction of the decree in regard to that was reported to the Court within the time allowed under O. XXI, R. 2.
(3) Mr. Arunachalam for the appellant urged that the decision in Narayanasami v. Rangasami, ILR 49 Mad 716 : AIR 1926 Mad 749, is an authority for his contention that in the case of a partition decree regarding immoveable property, O. XXI, R. 2 would not apply. The facts of that case were that the decree provided that on the defendants paying a sum of Rs. 17,000 to the plaintiff, the plaintiff should recovery certain immovable properties standing in his name to the defendants. This decree was considered to be not a decree for payment of money and therefore O. XXI, R. 2 C.P.C. would not apply. In the case now before me, admittedly the compromise decree related not only to partition of moveable properties and immoveable properties, but also to division of outstandings.
The decree provided for one party paying money to the other party, representing shares of outstandings collected. The decision in ILR 49 Mad 716 : AIR 1926 Mad 749, will not therefore help the appellant. But in the execution petition filed herein, there is a recital that the panchayatdars met and attempted division of the immoveable properties having reference to the quality of the lands and that division was effected, though it was not completed. This is relied upon by Mr. Arunachalam as a report or a certificate to Court within the meaning of O. XXI, R. 2 C.P.C. In the decision in Govindadoss v. Rajah of Karvetnagar, 29 Mad LJ 219 : AIR 1916 Mad 795, a similar question arose for consideration.
There, a mortgagee assigned a decree obtained for principal mortgage amount and interest due to him. He was in possession of the mortgage property. But there was no provision in the decree for taking accounts of the profits which the mortgagee might receive after the date of the decree. When he attempted to execute the decree for realisation of the principal and interest due to him, he was met with the plea that the amount which the decree-holder had realised as profits subsequent to the date of the decree should b e ascertained and should be adjusted against the amount due under the decree. This plea was sought to be repelled by the contention that such adjustment had not been reported to the Court under O. XXI, R. 2. The Bench relied upon the averment in the execution petition itself to hold that the decree-holder had reported receipt of such moneys.
There the decree-holder had stated in his E. P. that though he had received money as profits from the mortgage properties and though he would be liable to adjust this amount against the decree, it could be done in separate proceedings. This the court held was a sufficient compliance with O. XXI, R. 2, C.P.C. and directed the executing court to ascertain the amount so realised by the decree-holder. Following the same principle, in this case, there can be no bar of O. XXI, R. 2, C.P.C., since in the execution petition itself the decree-holder has reported that the panchayatdars had met and divided the properties though they added a qualification that the division was not completed. We have not been given any indication as to whether the completion spoken of was in respect of any one of the items of properties involved in the suit or in respect of all the properties involved in the suit. It certainly is a report to court as regards the division of the immoveable properties.
(4) The question remains, however, for the lower Court to decide, namely, how far the division pleaded by the present appellant was a division effected by the panchayatdars. That question, as a question of fact has not been decided by either of the lower Courts.
(5) The orders of both the lower Courts are therefore set aside. The execution petition will be restored to file by the trial Court and it will go into the question of the truth of the partition of the properties pleaded by the present appellant. If the lower Court is satisfied about the truth of the partition, there will be nothing more to be done in that proceeding but to dismiss the E. P. If, however, the trial Court is not satisfied about the truth of the partition pleaded by the appellant but is satisfied that no partition was effected by the panchayatdars, it would be open to the lower Court to appoint a Commissioner to divide the properties. There will be no order as to costs.
(6) Appeal allowed.