1. The defendants Nos. 8 to 10 (the sons of the deceased 1st defendant) are the appellants before us. A preliminary decree for partition of the B Schedule properties was passed by the District Court, Cuddapah, in the plaintiff's favour against the 1st. defendant in 1904. The 1st defendant died in January or February 1914. The plaintiff filed the present petition on 8th December 1916 in the form of an execution petition and she filed it in the District Court of Cuddapah praying for the defendants Nos. 8 to 10 being brought on the record as the 1st defendant's legal representatives, for the appointment of a Commissioner to divide the B Schedule properties into six shares and for delivery of one such share to her.
2. The District Court has brought the defendants Nos. 8 to 10 on the record as the 1st defendant's legal representatives (evidently because no objection was taken by them to that course). But it treated the other prayers as prayers in execution and transferred the execution to the North Arcot District Court.
3. The appellants contend before us that,
Ground No. 2.--The appellants not having been made parties to the suit cannot be pro-seeded against in execution.
Ground No. 3.--The Court below erred in treating the application as a proceeding in execution.
Ground No. 4,--The legal representatives of the deceased not having been brought on the record within the time limited by law the District Judge ought to have held the suit as against him had abated.
Ground No. 6.--The lower Court has failed to note that the High Court expressly treated the decree as a preliminary decree to be followed up by a final decree, which alone is capable of execution.
Ground No. 8.--The District Judge ought to have held that the application was barred by limitation.
Ground No. 10.--The Court below had no jurisdiction to transfer the decree for execution to the District Court of North Arcot. So far as grounds Nos. 3, 6 and 10 are concerned, the appellants' contentions are sustainable and the order of the District Judge of Cuddapah transferring execution to the District Court of North Arcot must be and is set aside. It must be admitted that the judgment of the High Court in A.A.O. No. 252 of 1912 is not quite clear on the question whether the District Court of North Arcot had exclusive jurisdiction over the further proceedings in the suit but that judgment, in our opinion, did not intend to deprive the Cuddapah District Court of its undoubted jurisdiction under the law to continue the further trial of the suit, which must be considered as pending in that Court till a final decree is passed in the suit.
Ground No. 8 is unsustainable, as the petition is in substance not an execution petition but an application in a suit to pass a final decree and as such is not affected by the bar of limitation. Too great a stress should not be laid on the form of the petition.
4. As regards ground No. 4, the contention that the suit had abated by an application not having been made within six months of the 1st defendant's death was not raised or argued in the lower Court and the defendants Nos. 8 to 10, the appellants, were brought on the record of the suit without such an objection having been raised on their part. It is too late to raise the objection now and even if it is not too late, the plaintiff having filed a similar application (to bring on the record the legal representatives of the 1st defendant) in March 1915 in the North Arcot District Court and it appearing to us that the judgment of this Court in the previous proceeding between these same parties might have misled the plaintiff into the impression that applications as in execution proceedings could be taken by her once in three years and that they may be made to the District Court of North Arcot, we consider that the delay in filing the present application in the District Court of Cuddapah to bring in the defendants Nos. 8 to 10 as the legal representatives of the 1st defendant might be excused and we excuse it accordingly.
5. As regards ground No. 2 when a preliminary decree is passed against a Hindu father for partition, it is presumably passed against him as representing his undivided family and binds his sons, and on his death the plaintiff is entitled to add his sons as his legal representatives or even as parties whose names should be deemed to be already on the records as represented by their father till his death and which names are merely sought to be inscribed on the records openly after his death, [See also Hira Lal Sahu v. Parmeshar Rai (1899) A.W.N. 100
6. In the result we modify the lower Court's order by setting aside the direction transferring the decree for execution to the North Arcot District Court and direct the Cuddapah District Court to treat the application of the plaintiff, not as one in execution but as one in the pending suit itself, to pass a final decree after appointment of a Commissioner, &c.;, and to pass fresh orders accordingly. We need not say that the commissioner appointed under Order XXVI, Rule 14, may be a resident within the jurisdiction of the North Arcot District Court if the District Court of Cuddapah thinks it desirable or convenient to appoint such a person.
7. There will be no order as to the costs of this appeal.