1. At the hearing of an appeal from an original decree in a partition suit the dispute between the parties was settled by the plaintiffs agreeing to purchase the share of the defendant No. 1, at a price to be fixed by the Court of first instance. By consent of parties a decree was made to the following effect: 'The plaintiffs do pay to the defendant No. 1 the price so ascertained within one month from the date of the valuation being made and upon such payment being made the defendant No. 1 do convey her share to the plaintiff.' This order was made on the 4th of June 1903 in this Court. The case then want back to the Subordinate Judge, who fixed the value at Rs. 26,290 and on the 12th of December 1905 passed a supplementary decree directing the plaintiffs to pay that amount and the defendant No. 1 to execute a conveyance. There was an appeal to this Court and it was held that no appeal lay as no supplementary decree should have been passed and that the only decree in the case was the decree of the High Court, dated the 4th of June 1903, which became capable of execution one month after the making of the valuation. This order was passed on the 14th of June 1909. The defendant No. 1 then applied for the execution of the decree on the 23rd of August 1911, and was opposed by the plaintiffs who contended, first, that the decree was incapable of execution, and secondly, that it was barred by limitation.
2. As regards the first point it was argued that when the plaintiff failed to make the payment, the defendant could not force them to take a conveyance as there was no such direction in the decree and if the full amount could not be realized from them the defendant could not be forced to execute a conveyance for any lesser amount that could be realized. They contended that the defendants must bring a fresh suit for the specific performance of the contract, embodied in the consent decree. The con-tract having been embodied in the decree the defendant could perhaps have brought a suit on the basis of the decree. In such a suit he would have to offer to make the conveyance for the amount of value fixed, for which he could only obtain a money decree which he might or might not succeed in fully realizing. That would not improve his position in any degree or that of the respondents. As he offers to make a conveyance and takes the risk of realising what he can from the plaintiffs, we do not see the necessity of a fresh suit on the decree. The consent decree supplemented by the valuation is quite sufficient as a decree which would give the same remedy to the defendant without going through the circuit of a fresh suit. The learned Vakil who represented the defendant in the Court below did not give an under-taking to make the conveyance for whatever he could realize from the plaintiffs, but the learned Vakil who represents him here has intimated to us the readiness of his client to execute the conveyance and realize the value or whatever portion of it he could from the plaintiffs. We think this is a reasonable solution of the difficulty raised by the first objection.
3. As regards limitation it is contended that the application should have been made within 3 years from the 12th of January 1905, i. e., one month after the valuation made by the supplementary decree. It is contended that as the High Court held that the decree appealed against ought not to have been passed and interfered by way of revision, Article 182, Clause 2, of the First Schedule to the Limitation Act has no application, and reliance is placed on the decision of the Judicial Committee of the Privy Council in the case of Batuk Nath v. Munni Dei 23 Ind. Cas. 644 : 18 C.W.N. 740 : 12 A.L.J. 596 : 19 C.L.J. 574 : 16 Bom. L.R. 360 : 27 M.L.J. 1 : 16 M.L.T. 1 : 36 A. 284 : 1 L.W. 729 : (1914) M.W.N. 437 : 41 I.A. 104 (P.C.). There the appeal was filed but not prosecuted and by the rules of the Privy Council the appeal stood dismissed without any order to that effect. There was, therefore, no order of the Appellate Court to commence the counting of limitation from. Here there was an appeal as well as an order of the Appellate Court which terminated the existence of the appeal. In the case of Akshoy Kumar Nundi v. Chunder Mohun Chathati 16 C. 250 : 8 Ind. Dec. (N.S.) 165 it was held that the clause applied even if the appeal was rejected as filed out of time. In the case of Wazir Mahton v. Lulit Sing 9 C. 100 : 4 Ind. Dec. (N.S.) 718 it was held that the clause would apply even if the appeal was rejected as incompetent. In this case the appeal was filed by the plaintiffs mainly on the question of valuation and after contest was rejected as incompetent, but an order was made which superseded the decree of the Court below.
4. We think the application was within time.
5. In this view of the case we allow the appeal and direct the Court below to proceed with the execution upon the defendant executing a conveyance of his share as agreed and binding himself to be satisfied with whatever part of the value he could realise by execution against the vendees. The appellant not having agreed to give any undertaking in the Court below we make no order as to costs in this appeal.