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Judgment
The first point is whether the present suit is barred under Order 9, Rule 9 by reason of the former suit. Cases of a second suit for partition may fall under three Classes, (1) Where the former suit ended in a final decree, e.g. Soni v. Munshi (1901) 3 Bom LR 94 distinguished in Madan Mohan v. Baikanta Nath (1906) 10 CWN 839, cases where there was a preliminary decree but not a final decree example of this are Mukerji Afzul Beg 1915 All 1, Mariamanessa Bibi v. Jouyanan Bibee (1906) 33 Cal 1101 and Sethu Rama Sahib v. Ram Pershad (1906) 28 All 627. (3) Cases where the suit was dismissed f for default : Bisheshar Das v. Ram Pershad (1906) 28 All 627
The case before us falls under the last ''heading. Following the decisions in Bisheshar Das v. Ram Pershad (1906) 28 All 627 and Madhura Gramani v. Sesha Reddy 1926 Mad 1018, we hold that the present suit is not barred. The reason is that, even after the dismissal of the former suit, the jointness? continues and there is a continuing causa of action. It is unnecessary to consider the decision in Sethu Rama Sahib v. Chethu Rama Sahib 1918 Mad 751 and whether Mariamanessa Bibi v. Joyanan Bibee (1906) 33 Cal 1101 was rightly dissented from in it. The only other point relates to interest. The plaintiff will have interest only from the date of plaint vide Nanchappa Gounden v. Ittichana Mannadiar 1930 Mad 727. The decree is affirmed subject to this modification. As the appellant has substantially 1 failed, he will pay the costs of the respondent.