SEPAHDAR KHAN SANTHOJI Vs. BADI BI

JUDGEMENT

(1.) The District Judge is in error in holding that the provisions of the Partition Act IV of 1893 do not apply to a suit like the present in which a preliminary decree for partition had been made but in which the final partition had not been effected. Section 10 of the Act makes this plain, as pointed out in Kadir Bacha Sahib v. Abdul Rahiman Sahib 24 M. 639 followed in Bai Hirakore v. Trikamdas Hirachand 32 B. 103 : 10 Bom. L.R. 23 : 3 M.L.T. 141.

(2.) We set aside the order of the District Judge on the preliminary matter and direct him to restore the appeal to the file and dispose of it according to law.

(3.) It is open to him to consider whether the application should be disposed of owing to any laches on the part of the petitioner before the District Munsif or for any other cause. Costs will abide the result.