1. This is an appeal by the 1st defendant, against the 2nd defendant in a suit for partition brought by the plaintiff who is not a party to this appeal. The parties are Muhammadans and partition was decreed to plaintiff 3-16ths, to 1st 'defendant (appellant) 10-16ths and the 2nd defendant (respondent) 3-16ths. The preliminary decree was passed on October 2, 1921, declaring these shares and directing a Commissioner to make a partition by metes and bounds of the properties among the parties according to their shares. The Commissioner did so and the final decree, was passed on November 14, 1924, providing inter alia
that the several properties mentioned in Schedule II hereto be assigned to and they are hereby vested in the several parties under whose name the said properties are respectively set out absolutely, for and in full satisfaction of their respective shares and interests,
in the suit property. According to the plan prepared by the Commissioner the plaintiff was entitled to the plot B, the 1st defendant to plot C and the 2nd defendant to plot A. On January 6, 1926, the plaintiff applied for and obtained delivery of his share. On October 12, 1928,' the 2nd defendant applied in execution for delivery of the plot A. The appellant 1st defendant opposed the, application. His grounds were, as state by the learned Subordinate Judge in the lower Appellate Court (l) that there is no executable decree passed in favour of the 2nd defendant which is capable of being worked out in execution, (2) that the lower Court had no jurisdiction to pass a decree in favour of the 2nd defendant-respondent because the subject-matter of the suit related only to partition and separate possession of the, plaintiff's share alone and (3) that, in any case, the 2nd defendant's application is time-barred as the decree in question cannot be said to be a joint decree within the meaning of explanation (1) to Article 182 of the Limitation Act, The learned Judge rejected all these objections. They have been urged before me again.
2. As to the first objection, whether there is or is not an executable decree in favour of the 2nd defendant-respondent, the words of the decree which I have already set out are conclusive. They mean that the plot A set out under the name of the respondent was assigned to and vested in the respondent in full satisfaction of his share in the joint property. The only object of such a provision is that the party to whom the plot is assigned may be able to get it if he satisfies the other conditions for getting it, which include usually, if the party is not the plaintiff, payment of court-fees. This point fails.
3. The second objection is also equally futile. The court fails plaintiff's suit for partition has undoubtedly jurisdiction to award the other sharers their shares if they want to avail themselves of such a decision. In any case the appellant's objection to the decree cannot be heard in execution a*si this is sufficient to dispose of it. The learned Advocate here for the appellant tried to raise another objection under this heading, namely, that the decree is invalid because it does not bear the proper revenue stamp as an instrument of partition under the Stamp Act. I asked him whether he could show me from the judgments of the courts below that those courts had dealt with or were invited to deal with it. He has not shown me anywhere that this objection -was raised at any previous stage of this proceeding and I therefore decline to allow that objection to be taken here.
4. The last and the main objection is that based on limitation and it depends upon the question whether with regard to a decree in a partition suit such as the present, the' plaintiff's application for delivery of his share can be utilised by another party like the present respondent as the starting point for limitation. This pan be done only upon the footing that the decree comes within the latter part of explanation (1) to Article 182 of the Limitation Act, namely, that it is a joint decree. The lower Courts dealt with this upon the authority of Ramasami Aiyangar v. Narayana Aiyangar 65 Ind Cas 990 : 42 MLJ 94 : 14 LW 498; 30 MLT 312 : AIR 1922 Mad 327 and Vasudeva Muthu Shastry' v. Vittal Shastry 70 lnd Cas. 296 : 43 MLJ 379: 18 LW 292 : (192) MWN 518; 31 MLT 311 : AIR 1922 Mad 456 both of which cases upheld the familiar doctrine that a decree in a partition suit is one which is passed in favour of the sharers therein and that it is open to them all to take advantage of it; in other words, that such decrees are joint decrees faling within the description in Article 182, Explanation 1, But it is objected here that those were decisions upon partition decrees passed under the old Civil Procedure Code when there was only one decree, namely, what is now called the preliminary decree, and all subsequent proceedings were proceedings in execution of it. It is therefore urged that where under the new procedure the executable decree is the final decree referred to in Order XXVI, Rule 14 which awards to each sharer his particular plot or plots, such a decree does not come within the doctrine of those cases as it is a several decree. It is argued that this decree was therefore a several decree and in such a case the plaintiff's application cannot afford the starting point of limitation for the respondent's petition. This view has been accepted in Bam Jslath Roy v. Harendra Kumar Rai 131 Ind, Cas. 8(sic)0 : 58 C 1102 : 35 CWN 448; 53 OLJ 225 : Ind. Rul. (1931) Cal. 508; AIR 1931 Cal. 58l by a Bench of that court which held that in execution of final decrees under the new procedure which allot to the several sharers their respective plots, there is no element of jointness to enable them to be brought under joint decrees. This view was upheld by another Bench of that court in Monmohan Gope v. Madusadan Gope : AIR1932Cal869 although in that particular case the court held that that particular decree was a joint, decree because although there were allotments of several plots to the several shares was also a portion of the decree which awarded another plot jointly to them all, namely, a way to be used by them all, and it was held that the same decree cannot he both joint and several and therefore the whole decree must be understood as joint. There appears to be no authority in our court, or in any other court for that matter, on this point. If the point really arpfiif or decision I should have for the reason stated preferred to' send it to a Bench but the truth is that the point argued does not really arise because on the language of the decree now sought to be executed it is very like the decrae in Monmohan Gope v. Madusudan Gope : AIR1932Cal869 : where, although there were parts of the decree which were several, there was also a part which was joint. The final decree in this case as printed at page 4 of the paper was drawn up according to directions contained in Order XXVI, Rule 14 and the forms printed for use in the lower Courts: See Civil Rules of Practice, Vol. I part 2 Chap. 3, Rule 13 and Form No. 6 at p. 291 of the second Volume. It refers in the 1st paragraph, to the fact that the report of the Commissioner had been received and confirmed. Paragraph 2 then says that
it is declared that the property for division consists of the particulars set out in Schedule I hereto
and para. 3 says
it is decreed as follows:-that the several properties mentioned in Schedule 11 hereto be assigned to,
etc. etc. as set out in the earlier part of the judgment. Now it seems to me whatever may be the argument based upon other-final decrees which do not contain the declaration given in the second paragraph and whatever may be the argument as regards the question whether in a final decree merely awarding several plots to Several sharers an application for one plot cannot save from limitation the application for another plot, no such question can arise on this particular decree because as held in Monmohan Gope v. Madusudan Gope : AIR1932Cal869 a decree cannot be both joint and several at the same time and to the extent that' there is a declaration of a joint character of the property mentioned in Schedule I, the decree is undoubtedly one to the benefit of which all the sharers are entitled. That being so, the objection has no substance in it.
5. The order of the lower Appellate Court is.-confirmed and/the appeal is dismissed with costs.