Ram Nath Bhattacharjee vs Uma Charan Sircar and Others

Sale, J.—In this case the father of the Petitioners on the 16th September 1886 instituted a suit for the declaration of the rights of the parties in the promises No. 9, Durjipara Street, and for partition. On the 12th July 1887 a decree was made declaring the Plaintiff entitled to one-fourth share in the premises and that the Defendants were entitled to the remaining three-fourths share jointly and directing a partition to be made of the premises in accordance with these shares. The Plaintiff died in December 1891 leaving the Petitioners, his sons and heirs, all of whom were then infants, except the Petitioner Debendra Nath Bhattacharjee. No steps were taken to carry out the partition decree, the Petitioners alleging that partly through their minority and partly through want of means, they have been unable to execute the decree. They also say that the Defendants or some of them have from time to time promised to buy their share and so have induced them to abstain from prosecuting the suit any further.

They now apply to have the suit revived in their own names and in the names of the representatives of each of the original Defendants who have died with the object of proceeding with the partition of the property.

One of the original Defendants Sri Hurry Churn Sirkar appears to oppose the application. He contends that the application is hatred by limitation, inasmuch as if the application is to be considered as made under sec. 372 of the Code, the period of limitation applicable is three years. He, moreover, alleges that he was an infant at the date of the decree though he was not so described in the cause title of the suit, that he had no notice of the suit or knowledge of any of the proceedings therein or of the existence of the decree until he was served with the notice of the present application.

In my opinion this application is governed by the ruling of Wilson, J., in the case of Kedar Nath Dutty. Harra Chand Dutt ILR 8 Cal. 420 (1882), which ruling I followed in the unreported case of Saroda Kant Mitter v. Aghore Nath Neogy Unreported. Suit No. 265 of 1882 and I must hold that the application is made in a pending suit, and though falling within sec. 372 of the Code, is not time-barred, the right to apply being one which accrues from day to day.

The questions raised by the Defendant, Hurry Churn Sirkar, other than the plea of limitation, are not such as I can consider at this stage of the case. The Petitioners are entitled to the order in terms of their summons except that the parties appearing must bear their own costs of the application.