RAM GOPAL Vs. BHIKAM CHAND

JUDGEMENT

(1.) THIS is a revision application by one of the defendants against an order of the executing Court dismissing his application purporting to be under Section 3 (1) of the Partition Act 1893.

(2.) BHJKAM Chand respondent No. 1 instituted a suit for the partition of two properties.-- one measured about 167 sq. yds. and referred to as house and the other measured about 57 sq. yds and referred to as a Bara. It is not disputed that the share of Bhikam Chand in these properties is 3/5th, the share of Ram Gopal applicant is 1/5th and the remaining 1/5th is owned by Karnidan, Ram Kishan and Jaikishan. In para 9 of the plaint it was alleged by the plaintiff that the Bara was indivisible and it was prayed that it may be auctioned amongst the co-sharers. Further it was stated that if the Court was of the opinion that the bigger property was also indivisible that may also be sold by auction amongst the sharers. In para 9 of the written statement Ram Gopal defendant admitted that the smaller property was Indivisible and agreed that it should be sold by auction amongst the co-sharers. He alleged that the bigger property was also indivisible and should also be sold by auction amongst the co-sharers. The trial Court sold the smaller property to Karanidan, Ramkishan and Jai Kishan respondents who were directed to pay Rs. 27 /- by way of compensation to the other co-sharers. It held that the bigger property was divisible and directed its division by metes and bounds. Bhikam Chand preferred an appeal against this decree. The appellate Court held that the bigger property was indivisible and directed its sale by auction amongst bhikam Chand and Ram Gopal. Against that decree Ram Gopal has preferred a second appeal which is pending.

(3.) BHIKAM Chand applied for the execution of the decree of the appellate Court dated 3-4-62. Bam Gopal filed an application purporting to be under Section 3 (1)of the Partition Act that the Court should order a valuation of the property and should sell it to him. This application was rejected and Ram Gopal has preferred the present revision application against that order. A number of preliminary objections were taken on behalf of Bhikamchand. It is however not necessary to decide them as in my opinion the application of Ram Gopal was rightly rejected.