Makhan Singh vs Gian Chand and Another

A.S. Bains, J.—Makhan Singh Plaintiff, has filed this petition against the impugned order,--vide which the trial Court held that the property in dispute is not partible. The preliminary decree was passed by the Sub-Judge on 27th November, 1974, declaring the Plaintiff and the Defendant No. 1 to be the owners in equal, shares and a local Commissioner was appointed who submitted her report. Objections were raised by both the parties against the report of the local Commissioner. Accordingly, the report was set aside and another local Commissioner was appointed. He visited the site twice and made his report. The present Petitioner raised objections alleging that the property in question is partible and the report of the local Commissioner be modified to this extent. The learned trial Court after considering the evidence and the report of the local Commissioner held that the property is not partible and both the parties were directed to purchase property in question by offering bids and either of the two co-sharers can purchase property by giving higher bid as required by Section 2 of the Partition Act.

Mr. Kapur, learned Counsel for the Respondent has raised preliminary objection that the present petition is not competent as appeal lies against order as such order is a decree within the meaning of Section 2 of the Code of Civil Procedure. I find merit in what Mr. Kapur says. The order of the learned Sub-Judge is u/s 2 of the Partition Act and the same is deemed to be a decree u/s 2 of the CPC as laid down in Section 8 of the Partition Act which is in the following terms:

Any order for sale made by the Court u/s 2, 3, or 4 shall be deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure.

Perusal of this section shows that the order u/s 2 of the Act shall be deemed to be a decree within the meaning of Section 2 Code of Civil Procedure, and since it is a decree within the meaning of Section 2, Code of Civil Procedure, it is appealable to the District Judge. In Rashbehari Dutta and Others Vs. Panchanan De and Others, , it was held by their Lordships that revision petition against an order allowing the prayer of the opposite parties for sale of the disputed properties u/s 2 of the Partition, Act is not maintainable. No other point is urged.

For the reasons recorded above, this petition fails and is dismissed. There will be no order as to costs.