1. Plaintiff is the appellant. This second appeal arises out of a suit instituted by him for partition. The plaint property belonged to one Moideen. He died leaving a widow and two children, Mammakutty a son, and Biyyakutty a daughter. Mammakutty died leaving as his heirs the 2nd defendant his widow, and the 1st defendant his daughter. The 2nd defendant instituted a suit for partition (O.S. No. 407 of 1903) and obtained a decree. In the meanwhile, Mammakutty had mortgaged his interest to one Kunheen in May, 1899, and the plaintiff had purchased that interest. As such purchaser he brought a suit (O.S. No. 409 of 1919) on Mammakutty's mortgage and obtained a decree for the sale of Mammakutty's share in the properties. In execution of that decree he himself purchased the said share in Court-auction and obtained delivery of the plaint properties. The 3rd defendant in the present suit having obtained an interest in the properties from some of the defendants in O.S. No. 407 of 1903, put in a petition for re-delivery of the plaint properties alleging that she also had obtained some interest in them (see M.P. No. 3101 of 1916). The Court then ordered redelivery of the properties to the 3rd defendant under Ex. K on the 25th of June, 1917. Later on the plaintiff in his own turn got symbolical delivery of these properties (see Ex. L, dated the 3rd of October, 1918).
2. It was argued by the 3rd defendant, who is the contesting defendant in the suit, that since the present suit by the plaintiff has been instituted more than a year after the order in M.P. No. 3101 of 1916 (Ex. K) the suit is barred under Article 11-A of the Limitation Act, that the order under Ex. K is final under O. XXI, Rule 103 of the Civil Procedure Code and that the present suit is not maintainable. Accepting the argument, the learned Subordinate Judge reversed the District Munsif's decree and dismissed the plaintiff's suit.
3. In second appeal it is argued on behalf of the plaintiff-appellant that the lower Appellate Court has totally misunderstood the nature of the proceeding which led to the passing of the order Ex. K that Article 11-A has really no application to the facts of the present case and that the plaintiff' is entitled to get Mammakutty's share of the suit properties which he purchased in auction by instituting a suit for partition which is the only remedy that lie is entitled to pursue. We must accept this argument. The lower Appellate Court has misunderstood the nature of the application made by the present 3rd defendant in M.P. No. 3101 of 1916. It was not a claim petition put in by a stranger. In O.S. No. 419 of 1911, which, it will be remembered, was instituted by the present plaintiff and in which he got a decree for the sale of Mammakutty's share, the present 3rd defendant was a party, viz., 5th defendant. Exhibit K makes that very dear. The application M.P. No. 3101 of 1916 was, therefore, one between parties to a suit under Section 47 of the Civil Procedure Code and as such it is clear that Order XXI, Rule 103 of the Civil Procedure Code and Article 11-A of the Limitation Act are altogether inapplicable. In this view, the arguments addressed to us and the cases quoted on the assumption that those provisions of law apply to this case need not be considered.
4. The real question is whether the order Ex. K in M.P. No. 3101 of 1916 in effect bars the right of the plaintiff to institute this suit. In our opinion the order read as a whole does not. The case of the present 3rd defendant in that petition was, as stated in the order itself that the 'counter-petitioner' (the present plaintiff) 'should sue for partition and possession of Mammakutty's share', and this we think is the result of that order. Paragraph 3 of the order runs thus: 'It is clear if it has not been definitely ascertained what Mammakutty's Bhare was in O.S. No. 407 of. 1903 of this Court the counter-petitioner cannot be entitled to exclusive possession of the property in dispute, and that he is only entitled to symbolical possession under Order XXI, Rule 35(2) of the Civil Procedure Code.' In view of these statements, we cannot agree with Mr. Govinda Menon's contention that the operative part of the order contained in para. 7 directing 'redelivery of the property to the petitioner' means that the plaintiff's right to Mammakutty's share is altogether negatived. We think that his right to present joint possession of the property remains unaffected by that order and is in substance recognised by it. That order, therefore, is not detrimental to his interests in any way and he is not bound to set it aside. On this construction of the order the argument that the plaintiff being a Muhammadan should have sued for the present possession of his share of the property within a year after the passing of the order Ex. K, supported by the decision in Ganpat Rai v. Hussain Begum 60 Ind. Cas. 905 : 19 A.L.J. 53 referred to in Shanmugam Pillai v. Panchali Ammal 95 Ind. Cas. 209 : 49 M. 596 : 23 L.W. 551 : 50 M.L.J. 681 : A.I.R. 1926 Mad. 683 does not arise for consideration. The plaintiff's right for the recovery of the specific share to which he is entitled is, according to the decisions of this Court in Yelumalai Chetty v. Srinivasa Chetty 29 M. 294 and Hassan Ammal Bibi v. Ismail Moideen Rowther 29 Ind. Cas. 976 : 28 M.L.J. 642 : (1915) M.W.N. 414, to be enforced not by a mere application for execution but by instituting a suit for partition; and since 12 years have not elapsed since his rights came into existence his pre sent suit for partition is clearly not barred by limitation.
5. We, therefore, set aside the decree of the lower Appellate Court and restore that of the District Munsif. The appellant will get his costs in the lower Appellate Court and in this Court each party will bear his own costs.