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Mohun Chunder Kurmokar and anr. Vs. Mohes Chunder Kurmokar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal569
AppellantMohun Chunder Kurmokar and anr.
RespondentMohes Chunder Kurmokar and ors.
Excerpt:
limitation - act xv of 1877, schedule ii, article 179--execution of decree--partition--joint decree--decree for partition. - .....without dividing the entire property, one-third portion was separated. on the 16th march 1882 the present applicants applied for partition of the rest of the properties, that is, of the remaining two-thirds which were not partitioned the question we have now to decide is, whether that application being made more than three years after the decree of the 30th january 1877 is kept alive by the application of some of the plaintiffs in january 1880. the lower appellate court has considered that it is not, inasmuch as the decree must be regarded as practically a separate decree in the interest of each of the parties. we are unable to concur in that view; we think on the whole that the proper view to be taken of the decree is that it was a joint decree, within the meaning of the second part of.....
Judgment:

Cunningham, J.

1. In this case there was a decree on compromise on the 30th January 1877, by which the parties were declared to be entitled to a partition, and it was ordered that, if the plaintiffs did not have the partition of the lands carried out within two months, any one of the parties, plaintiffs or defendants, might execute the decree and take possession after partition. The partition was not carried out forthwith, and an application was made by some of the plaintiffs to have the partition effected, and on that application, without dividing the entire property, one-third portion was separated. On the 16th March 1882 the present applicants applied for partition of the rest of the properties, that is, of the remaining two-thirds which were not partitioned The question we have now to decide is, whether that application being made more than three years after the decree of the 30th January 1877 is kept alive by the application of some of the plaintiffs in January 1880. The lower Appellate Court has considered that it is not, inasmuch as the decree must be regarded as practically a separate decree in the interest of each of the parties. We are unable to concur in that view; we think on the whole that the proper view to be taken of the decree is that it was a joint decree, within the meaning of the second part of the explanation to Article 179 of the second schedule of the Limitation Act. We consider, therefore; that the application is not barred by limitation.

2. The Munsif in passing orders on the application directed that the whole of the property should be partitioned, thus re-opening the proceedings of January 1880. We concur with the lower Court in thinking that in doing this he was going beyond what the applicants had asked for. We think that the proper order to pass in the case is that the execution should now issue as prayed by the applicants. The present appeal must be admitted with costs.


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