JUDGMENT
Dawson Miller, C.J.
1. This is an application in revision from an order passed by the Munsif of Palamau on the 16th April 1924 in a partition suit in which the present petitioner was one of the defendants and the opposite party were the plaintiffs. Although the matter was strenuously argued by Mr. Murari Prasad on behalf of the petitioner, the case really presents no features of difficulty. The plaintiffs in the partition suit were the proprietors of 2 annas 8-pies share in Mauza Guntur which they purchased from one Parbhuram Baid who before the purchase held 5-annas 4-pies in the village. The petitioner also held 5-annas 4-pies share and the remaining third share was held by other parties. If appears also that the balance of Parbhuram’s share had also been sold to another party. In the year 1919 it appears that a previous partition suit was instituted by the plaintiffs and in that suit the petitioner put in a defence alleging that a previous private partition had taken place many years ago in which the cultivated and culturable lands of the village had been partitioned into three separate pattis of 5 annas 4-pies, one of these shares being at that time allotted to Parbhuram or his predecessors, and that it was only the jungle and waste lands of the village that still remained ijmal. He contended, therefore, that the whole village could not be partitioned and that the plaintiffs could only get a share of the cultivated lands held by Parbhuram. This contention prevailed and a preliminary decree was passed in that suit for partition of the jungle and waste lands as existing at present of the entire village among all the parties and for the division of the entire lands forming the 5-annas 4-pies takhta of Parbhuram Baid between the plaintiffs and the defendant No. 4 only, the defendant No. 4 being the purchaser of the other portion of Parbhuram’s interest. This decree was affirmed on appeal to High Court and a Commissioner was duly appointed. The plaintiffs, however, did not proceed with the partition and on the 26th February 1921, the plaintiffs having failed to pay the Commissioner’s fee the proceedings terminated. What the exact order made was we have not seen. We have been told that the case was struck off, whatever the effect of that may be At all events the proceedings then terminated and no further action was taken under that decree.
2. In 1923 the plaintiffs again brought a suit for partition making the petitioner and the other proprietors, defendants. The claim in the present case was two-fold. They prayed for a partition in respect of the plaintiffs’ 2-annas 8-pies share in the manner directed in the judgment in the previous suit and that the plaintiffs be put in separate possession, that is to say, they sought for partition of the plaintiff’s share out of the share of Parbhuram. Alternatively they sought for partition of the plaintiffs’ share out of the whole village upon the assumption and after declaring that the village was joint. Nobody appeared to defend that suit. Evidence was given on behalf of the plaintiffs that no previous partition had taken place and in the result the learned Munsif passed an order in these words: “That a preliminary decree for partition be passed. The plaintiffs shall get a separate takhta and separate possession over 2-annas 8-pies share.” I pause here for a moment to point out that had the defendants appeared in that suit and urged a plea of res judicata they might possibly have succeeded. The learned Munsif, however, before whom the case came in the absence of any appearance on behalf of the defendants passed a decree in the general terms which I have already referred to. He may have been right or he may have been wrong as a matter of law in arriving at that decision but we are not concerned with that now. A decree was passed in plaintiffs’ favour and it could only be set aside on appeal or by way of review or by some other proper procedure. No such proceedings, however, were taken. A Commissioner was appointed to effect the partition by metes and bounds and subsequently an application was made for re-hearing on behalf of the petitioner who, as I stated, had offered no defence when the suit came on for trial. In that proceeding two points were argued, first, that the matter was res judicata and, secondly, that the order in the decree was consistent with a decree for partition out of Parbhuram’s share only and that it should be so construed. With regard to the first point it was not open to the petitioner at that stage to rely upon the defence of res judicata. It might or might not have been a good defence to the suit; I offer no opinion about it; but it could not be urged in an application for re-hearing under Order IX, Rule 9 of the C.P.C. and the Munsif rejected it. With regard to the second point the Munsif who made the order stated, that it was a decree for partition of the whole village and gave reasons why he considered the previous suit was not res judicata and ordered partition to proceed. Ha certainly had jurisdiction to construe his own order and he had no doubt that it was an order for partition of the whole village. Moreover the language of the order was certainly wide enough to support that view. In these circumstances I can see no reason why we should interfere in revision with the order then passed that the partition should proceed. The Munsif had jurisdiction to make the order and there was no irregularity in the exercise of his jurisdiction. In my opinion this application should be dismissed with costs.
B.K. Mullick, J.
3. I agree.