SARAYAKARAN ALIS MUNIYAN Vs. PERUMAL

JUDGEMENT

(1.) The matter comes before us on a reference by Ganesan, J. The learned Judge thought that there was a conflict of decisions and therefore it should be resolved. But on the view we are inclined to take there is no conflict of decisions. The question is at what stage an application under Sec. 3(1) of the Partition Act of 1893, should be made: is it before an order has been made under Sec. 2, or can application under Sec. 3(1) be made even thereafter, but before the sale is actually held. That is how the question has been propounded by the referring Judge.

(2.) On a plain reading of Ss. 2 and 3, it seems to us that the right to apply under Sec. 3(1) arises the moment a request has been made under Sec. 2. If a direction for sale of the property has been given under Sec. 2, it does not follow that an application under Sec. 3(1)cannot be made thereafter. All that is necessary is that in order that an application under Sec. 3(1) may be considered, the petitioner should apply to have the order under Sec. 2 set aside because, so long as that order stands, the application under Sec. 3(1) does not call for consideration. It may be even visualised that a sale has taken place under Sec. 2. Even in such a case, as it seems to us, there is no bar to be inferred from the two Ss. to an application being made under Sec. 3 (1), but only it cannot be considered unless the order for sale made under Sec. 2 is set aside. That we think is the correct approach. We do not think that the question was considered in Angamuthu Mudaliar v/s. Ratna Mudaliar, I.L.R. (1925) 48 Mad. 920 :, 49 M.L.J. 411 :, A.I.R. 1925 Mad. 1234, As to Jayarama v/s. Annamalai I.L.R., (1966) 2 Mad. , we agree with Kailasam, J., that a right to apply under Sec. 3(1) accrues the moment a request under Sec. 2 has been made to the Court. Beyond that stage, an application may always be permissible, but only, as we said, any order made under Sec. 2, or sale held pursuant to that order will have to get out of the way first before an application under Sec. 3(1) can be taken up for consideration.

(3.) On that view of the matter, we set aside the order of the Court of the District Munsif and remit the application under Sec. 3(1) to the Court for disposal, along with any application which the petitioner may have filed for setting aside the order for sale under Sec. 2. If no such application is made to set aside the order under Sec. 2, the application under Sec. 3(1) will naturally have to be dismissed.