1. This is a somewhat curious case and raises debatable points of law. It appears that the present appellant was the plaintiff in a suit No. 199 of 1878. That was a partition suit and it had reference to six items of property mentioned in the decree, which was passed therein. The decree was dated 2nd July 1879 and was an ordinary decree for partition. The effect of it was to declare that the plaintiff was entitled to one-fourth interest in all the properties and that two other persons, now dead, were entitled to six-sixteenths each. It seems that, after that decree was passed, no further steps were taken beyond the appointment of a commissioner, who died in or about 1896, having done nothing towards the execution of the commission. In July 1932, that is some 53 years after the preliminary decree, the plaintiff applied to the learned Judge on the original side, by notice of motion, asking, among other things, that certain names of parties defendants to the suit, now dead, be struck out and the name of Kunjabihari Basak be substituted in their places, for the appointment of a commissioner of partition to partition certain properties which were properties Nos. 1 and 2 in the schedule to the preliminary decree under the names of premises Nos. 27 and 28, Charhakdanga Street, but which are now properties in a street called Tagore Castle Street.
2. It may be desirable to state here that the third property in the schedule to the decree had been acquired by the Calcutta Improvement Trust and that the parties entitled got their respective shares. The same is true of the fifth of the properties mentioned in the schedule. As regards the fourth property mentioned in the schedule it appears that partition suit No. 1162 of 1915 was brought by the present respondent, Kunjabihari Basak, in which the present appellant was a defendant. Proceedings for partition of this property are still pending in this suit of 1915. As regards the sixth property in the schedule, what appears to have happened is that, in the eighties, an agreement was entered into, dated 18th March 1888, according to which the appellant was at liberty to live in this property and was to get an allowance of Rs. 5 a month. It seems that, at some time, she purported to sell the whole interest in that property and that, under that transfer, which as regards the three-fourths share was without title, the respondent Kunjabihari has bought in one-fourth share of the plaintiff, so that he is the sole owner of this property.
3. The plaintiff in this application makes no claim to be interested in any property except Tagore Castle Street properties, items Nos. 1 and 2 of the schedule to the old decree. During the fifty years, that have elapsed since the decree was passed, all the other parties have died and, in one way or another, if the matter is traced out, it would appear that the respondent, Kunjabihari, can make title to the three-fourths share, which does not belong to the plaintiff. In these circumstances, after so long an interval, and after it is clear that parties had come to an agreement, under which the commission of partition was not to be carried out, the questions that were debated before the learned Judge were, first of all whether it was open to him in law to allow the plaintiff to bring in the respondent and to proceed under the decree as regards this single property, and secondly whether, if it was open in law, the Court had a discretion and ought to exercise the discretion in the plaintiff's favour. It was contended, on the part of the defendant, that the plaintiff's application was incompetent, because long ago the suit had abated as regards the deceased defendants and it was also said that she was out of time to set aside the abatement. It was further contended that the relief, that she sought, was really a relief by way of an order to enforce the decree of 1879 and that this was also barred by limitation. The learned Judge has not been satisfied that either of these answers is available to the respondent but he has come to the conclusion that the Court has a discretion in the matter and that, in the circumstances of the present case, it would be an improper exercise of discretion to allow the plaintiff's claim.
4. Now, before us the question of abatement and of limitation have also been, very carefully argued. They turn out to be very complicated questions, because until 1908 the Code of 1882 would apply to this suit and the Code of 1877 would apply prior to 1882. So far as I can see, under the Code of 1882, the suit had not abated, because there was no order for abatement and we have been referred to the decision of Wilson, J., in Kedarnath Dutt v. Harra Chand Dutt (1882) 8 Cal 420 as showing that, under what is now Order 22, Rule 10 the Court had a discretion, which was not interfered with by any Article of the Limitation Act. It must, I think, be taken that, at all events until the Code of 1908 came into operation, the position was the position set forth by Wilson, J., in Kedarnath Dutt's case (1882) 8 Cal 420. His view was that, as there had been a decree in that suit the case did not come under Section 368(which only applied to deaths of defendants before decree) and that consequently the case came under Section 372-'in other cases of assignment' and so on. Holding that there was no limitation, which fettered an application under Section 372, he made an order of the character asked for in the present case after a lapse of some ten years. He made it upon an affidavit by the plaintiff, that the delay in the proceeding had arisen from his being desirous of effecting an amicable partition, which he had used his best endeavours to do but without success. Now, if we are to examine the question of abatement, as it would arise in this suit when the Code of 1908 came into force, I assume that code would take effect upon this case. The position is this-that, although under the previous Code it does not appear that what we now call a preliminary decree for partition was described by the Code as a decree, the practice of this Court, as appears from the present case, was to make a decree. If therefore the suit be taken as one in which a decree had been made of the character of what is now under the Code of 1908 called a preliminary decree, then the question arises whether the provisions of the Code as regards abatement in Q. 22 apply after decree at all. At one time, all the Courts in India appear to have held that they did, but there are recent authorities the other way. In particular, there is the authority of a decision of a Division Bench of this Court in Nazir Ahammad v. Tamijaddi Ahammad : AIR1929Cal430 to the effect that, after a preliminary decree, a suit does not abate. Whether this ruling is right or not is a matter which could only be settled if we are to refer this case to a Full Bench; but the case appears to proceed to some extent upon the case of Lachmi Narain Marwari v. Balmuhund Marwari AIR 1924 PC 198, in which the Subordinate Judge purported to dismiss a suit after a preliminary decree, because the plaintiff had not appeared to prosecute the directions given by the preliminary decree. It was pointed out in that case by the Judicial Committee that, after decree, a suit could not be dismissed, because the decree could only be set aside by appeal and not otherwise. It was also pointed out in that case that it was unnecessarily hard upon the plaintiff to prevent him having the preliminary decree carried out in view of the fact that his cause of action had merged into decree and another suit could not be brought by him. I desire to say here that we do not propose to make any order, which purports to dismiss the suit or to set aside the decree. I desire to point out further, in the present case, that this is a partition suit and that nothing, which can be done in this partition suit, except a concluded partition, can prevent the plaintiff from bringing another partition Suit. I think therefore there is no way, by which it can be said that the decision of the Judicial Committee in the case referred to concludes the present case.
5. In the result, I propose to deal with this ease on the same footing as the learned Judge on the original side purported to deal with it, namely, that I am not satisfied that the plaintiff can be met with any answer on the ground of abatement of the suit and I am not satisfied that what she asked could be regarded under Article 183, Lim. Act, as being an order to enforce the preliminary decree. Even so however it appears to me that when after 50 years we are asked to make an order bringing in a new defendant and reconstituting this suit, the matter is one for the discretion of the Court. It is quite clear that, if the old Section 372 or the present Order 22, Rule 10 applies to the case, the Court has a discretion. The learned Judge appears to have noticed an argument to the effect that, when a Court passes a preliminary decree, so to call it, it is the Court's duty, whether the parties take steps or not, to see that the preliminary decree, e.g., for partition, is carried into effect. Where this doctrine comes from I do not profess to understand. It is very high doctrine and it appears to me to be extremely precarious. I cannot understand that it is any part of the duty of this Court to thrust a partition of the family property on the parties, whether they apply or not, which presumably means whether they desire or not.
6. I am therefore clear that the Court has a discretion in the matter and that discretion has to be carefully exercised on the individual facts of each case. Prima facie, an application, which is entirely without excuse, so far as I can see, after 50 years is an application not to be regarded with favour. But, in the present case, we have much more than that. It appears clear enough that this lady under a certain agreement intended that the partition should not be carried to a conclusion. She purported, notwithstanding the decree, to sell the whole interest in the garden property-property No. 6. She has been a defendant to a new partition suit in respect of property No. 4-a suit in which she has never said or suggested that there exists an effective decree for partition. In the 50 years that have elapsed, not only have there been many devolutions of interest but occasions have arisen for various grounds of contention. It is not a very handsome contention, but the respondent desires to contend that long ago, for various reasons, this lady has been by him ousted from the property, which she now seeks to partition. It seems to me, if the lady has any right or could in any way better her position when bringing another suit for partition by calling it a supplementary suit on the analogy of a supplementary bill in equity, she may exercise this right. But on the facts of the present case it would be a very bad example and a wrong exercise of discretion, if we were to allow her to resurrect the old decree in order that, without bringing to a hearing and deciding many matters of contention, which have arisen during the last 50 years, she may use this decree merely for the purpose of getting partition of one of the properties of the original decree. I think therefore the learned Judge has dealt with this case on sound lines and that this appeal fails and should be dismissed with costs in both the Courts.
7. I agree.