1. The question in this case is whether the appellant's suit for recovery of possession of the suit properties is barred under Section 47 of the Code of Civil Procedure.
2. The appellant is the purchaser of the rights of defendants 1, 3, 4 and 7 who are respondents 1, 3, 4 and 7. The four vendors of the plaintiff along with some others were the heirs-at-law of one Marakkarkutti, who died before 1910 leaving considerable properties. In 1910 all except one daughter of his entered into a partition evidenced by Ex. II. The daughter who was then left out filed O.S. No. 10 of 1915 for a partition and a final decree Ex. G-was passed in that suit. Defendants 1, 3, 4 and 7 in this suit who are the vendors of the plaintiff were also defendants in the partition action. These defendants had to pay some sums to the plaintiff in the partition action under the final decree. Partly for raising the money payable by them under the partition decree to the plaintiff in that suit and partly for some other purposes, the sale deed Ex. A was executed on the 14th December, 1923, in favour of the present appellant. He filed the suit after purchase. His ease is that after the purchase, he leased the properties in Schedule B and items 2 to 5 in Schedule C to the 7th respondent and another Kunhalan on a rental of Rs. 164-4-0 per year. Item 1 of the C Schedule which is also purchased under Ex. A continues to be an his possession and the suit does not comprise that item. As his lessees committed default he filed O.S. No. 356 of 1930, to recover the land leased to the 7th respondent and Kunhalan and made respondents 1, 3, 4 and 7 in this suit and Kunhalan parties. A decree was passed and in, execution, resistance was caused by respondents 6, 8 and 10. E.A. No. 610 of 1935 was filed to remove the obstruction and that application was dismissed. Thereupon the present suit was filed to establish the right of the appellant to the suit properties and to recover possession from the contesting defendants. The suit has been dismissed by the Courts below on the ground that the appellant or his vendors should have sought recovery of possession of these properties in execution of the decree in O.S. No. 10 of 1915 and that therefore Section 47, Civil Procedure Code is a bar. The decree in that suit is Ex. G. The plaintiff was, as already stated, the daughter and the defendants were the other heirs-at-law of Marakkarkutti. The final decree allotted various plots to the different sharers and made provision for payment of various sums of money by one party to another. Then Clause 17, which is material runs thus:
That the remaining sharers other than plaintiff shall be put in possession of their respective shares on paying the necessary court fees.
The next Clause (18) runs thus:
The court-fee in respect of the excess amount allowed to plaintiff as mesne profits should be levied in execution.
The vendors of the appellant were some of the main sharers other than the plaintiff in that suit and therefore under Clause 17 of the decree in that suit (O.S. No. 10 of 1915), they were entitled to be put in possession of the properties on payment of the necessary court-fee. The question is whether they were bound to seek recovery of possession in that decree in the execution department or whether they are entitled to file a separate suit. If it is execution of that decree, they must seek execution within three years. The sale in favour of the appellant was in the year 1923 more than three years after the date of the final decree. The final decree was on the 31st December, 1918, and the sale in favour of the plaintiff was on the 14th December, 1923, i.e., nearly five years later. And if it is a question of executing that decree, the execution was barred even before the purchase by him of the property in question.
3. It is urged for the appellant that his client was only a defendant in the partition action and that the proper construction to be put on Clause 17 is that it gives an option to the other sharers to seek possession in execution of that decree on payment of the necessary court-fee. He urges that a defendant in a partition action, though for some purposes is also a plaintiff, did not file that suit. He did not seek partition. He may not want one. If in granting a decree to the plaintiff, the Court allots certain properties to the share of the defendant, it is urged that the Court cannot oblige the defendant to pay court-fees within a particular time and to get the properties allotted to him from the other party if those properties are in the possession of the other party. It is conceivable that he may not be in possession of funds necessary for the payment of the court-fee which alone would enable him to get possession of the properties in the possession of the other parties. The properties in his possession might be allotted to another sharer and he might be dispossessed of those properties. He might also be directed to pay certain moneys to the other sharers, as in this case the defendant might be obliged to pay that sum even after three years provided the other sharers keep the execution alive. Why then should the defendant be obliged to seek execution within three years and find the court-fees with in the three years? Is it a disability placed upon him if really it is construed that the defendant, must find the court-fee within the three years' period available for execution of that decree? For imposing this disability upon him there does not appear to me to be any warrant either in the Civil Procedure Code or in the Court-Fees Act. It seems to me that the proper method of reading such a decree is that it declares the right of the sharers to the properties allotted to them and to give an option to the defendants-sharers to pay the court-fee in respect of the properties allotted to them and seek possession if they like in execution of that decree. But it does not oblige them to do so and this seems to be the effect of the decision in Peda Nagabhushanam v. Pitchayya (1917) 6. L.W. 448 where dealing with an application of a defendant in a partition action to recover the properties allotted to him on payment of the court-fee, the learned Judges Abdur Rahim and Kumaraswami Sastri, JJ., said this:
The contention is that there is no provision in law for the defendants to pay any court-fee. But if a defendant under a decree or award for partition, such as we are concerned with in this case, gets a share allotted to! Mm of the property and if he wishes to execute the decree it seems, to be reasonable that he should pay his share of the court-fee payable on the entire decree...
Therefore it is an option given to the defendants in a partition action to pay the court-fee on the entire properties allotted to him if they wish to execute the decree. But if he does not, the allotment of certain properties to him under the partition decree stands. His rights are declared by that document and there is no reason why in such a case a separate suit ought not to be entertained.
4. It is possible that a decree may be passed in favour of the defendant without any condition, particularly as regards the payment of court-fee. If the decree allots certain properties to the parties and directs each party to be in possession of the properties allotted to him under the decree, then it might be a decree which is executable by each and Section 47 may bar a separate suit by a defendant who could execute the decree unconditionally but to bring about that result, it seems to me, you must have an unconditional ' decree giving the defendant a right to execute the decree to get the properties allotted to him.
5. I hold that the suit is maintainable and I reverse the decrees of both the Courts and remand the suit to the trial Court for disposal on the other issues. The court-fee paid on the second appeal is to be refunded. The other costs will be provided for by the trial Court in its revised decree.
6. Leave refused.