HIRACHAND KIKABHAI Vs. CHANDRASEN MOTICHAND

JUDGEMENT

(1.) These two revision applications are directed against the order dated March 14 1961 passed by the learned Third Joint Civil Judge Junior Division Surat accepting the report of the Commissioner appointed by him in a partition suit and directing thereby sale by public auction of some of the properties involved in the suit and against the order passed by the learned District Judge Surat dismissing an appeal filed therefrom on the ground that such an appeal did not lie against the aforesaid order.

(2.) The first respondent (the original plaintiff) filed a suit being Suit No. 1202 of 1958 against the deceased father of petitioners 1(1) to 1(8) and petitioner No. 2 and respondents 2 and 3 being original defendants 1 2 4 and 5. In that suit a consent preliminary decree was passed under which seven joint family properties were ordered to be partitioned amongst the partners the deceased father and respondents 1 2 and 3. Of these seven properties three properties were agricultural lands the partition of which was entrusted to the Collector Surat. The rest of the four pro- perties consisted of houses and godowns. In respect of these four properties the learned trial Judge appointed the fourth respondent as the Commissioner directing him to divide these properties by metes and bounds and distribute them according to the respective shares of the parties. On March 13 1961 the fourth respondent made his report in which he pointed out that it was not possible to conveniently partition these porperties by meter and bounds owing to differences and disputes existing between the parties and further that the properties were not capable of being physically partitioned and asked for directions permitting him to dispose them of by public auction. Respondents 1 2 and 3 (the plaintiff and defendants 4 and 5) who between them all had a one-third share in the said properties submitted to the Court that they had no objection to the properties being sold by public auction. The petitioners being original defendants 1 and 2 who had a two-third share between them in the said joint family properties were opposed to the properties being sold by public auction. After hearing the parties the learned Judge accepted the report of the Commissioner and directed that in the circumstances mentioned by the Commissioner in his report the four properties should be sold by public auction. The petitioners thereafter filed an appeal in the District Court Surat but as aforesaid the learned District Judge dismissed that appeal on the ground that such an appeal was not maintainable as the order passed by the learned trial Judge was not an order under Order 26 rule 14 of the Civil Procedure Code and not under the Partition Act 1893 and was therefore not an appealable order. Civil Revision Application No. 672 of 1961 is against that order of the learned District Judge and Civil Revision Application No. 381 of 1962 is against the original order passed by the learned trial Judge.

(3.) Two questions arise in these two applications (1) whether the learned District Judge was right in dismissing the appeal on the ground that no appeal lay against the impugned order and (2) assuming that no such appeal lay whether the learned trial Judge had the power in a parti- tion suit to pass an order imposing a forced sale on the parties.