The central legal point established in the judgment is the interpretation of Section 47 of the Code of Civil Procedure and the rights of the sharers to the properties allotted to them under the final decree.

Somayya, J.

1. The question in this case is whether the appellants suit for recovery of possession of the suit properties is barred under Section 47 of the Code of Civil Procedure.

2. The appellant is the purchaser of the rights of defendants 1, 3, 4 and 7 who are respondents 1, 3, 4 and 7. The four vendors of the plaintiff along with some others were the heirs-at-law of one Marakkarkutti, who died before 1910 leaving considerable properties. In 1910 all except one daughter of his entered into a partition evidenced by Ex. II. The daughter who was then left out filed O.S. No. 10 of 1915 for a partition and a final decree Ex. G-was passed in that suit. Defendants 1, 3, 4 and 7 in this suit who are the vendors of the plaintiff were also defendants in the partition action. These defendants had to pay some sums to the plaintiff in the partition action under the final decree. Partly for raising the money payable by them under the partition decree to the plaintiff in that suit and partly for some other purposes, the sale deed Ex. A was executed on the 14th December, 1923, in favour of the present appellant. He filed the suit after purchase. His ease is that after the purchase, he leased the properties in Schedule B and items 2 to 5 in Schedule C to the 7th respondent and another Kunhalan on a rental of Rs. 164-4-0 per year. Item 1 of the C Schedule which is also purchased under Ex. A continues to be an his possession and the suit does not comprise that item. As his lessees committed default he filed O.S. No. 356 of 1930, to recover the land leased to the 7th respondent and Kunhalan and made respondents 1, 3, 4 and 7 in this suit and Kunhalan parties. A decree was passed and in, execution, resistance was caused by respondents 6, 8 and 10. E.A. No. 610 of 1935 was filed to remove the obstruction and that application was dismissed. Thereupon the present suit was filed to establish the right of the appellant to the suit properties and to recover possession from the contesting defendants. The suit has been dismissed by the Courts below on the ground that the appellant or his vendors should have sought recovery of possession of these properties in execution of the decree in O.S. No. 10 of 1915 and that therefore Section 47, Civil Procedure Code is a bar. The decree in that suit is Ex. G. The plaintiff was, as already stated, the daughter and the defendants were the other heirs-at-law of Marakkarkutti. The final decree allotted various plots to the different sharers and made provision for payment of various sums of money by one party to another. Then Clause 17, which is material runs thus:

That the remaining sharers other than plaintiff shall be put in possession of their respective shares on paying the necessary court fees.

The next Clause (18) runs thus:

The court-fee in respect of the excess amount allowed to plaintiff as mesne profits should be levied in execution.

The vendors of the appellant were some of the main sharers other than the plaintiff in that suit and therefore under Clause 17 of the decree in that suit (O.S. No. 10 of 1915), they were entitled to be put in possession of the properties on payment of the necessary court-fee. The question is whether they were bound to seek recovery of possession in that decree in the execution department or whether they are entitled to file a separate suit. If it is execution of that decree, they must seek execution within three years. The sale in favour of the appellant was in the year 1923 more than three years after the date of the final decree. The final decree was on the 31st December, 1918, and the sale in favour of the plaintiff was on the 14th December, 1923, i.e., nearly five years later. And if it is a question of executing that decree, the execution was barred even before the purchase by him of the property in question.

3. It is urged for the appellant that his client was only a defendant in the partition action and that the proper construction to be put on Clause 17 is that it gi