BAI HIRAKORE Vs. TRIKAMDAS HIRACHAND

JUDGEMENT

(1.) It is contended in support of this appeal that Section 2 of the Partition Act, No. IV of 1893, applies only where a Court has to pass a decree in a suit for partition, but not where, after the Court has passed such a decree directing the partition to be effected in a particular mode, it is found that that mode is impracticable or inexpedient and one of the parties asks the Court to modify the decree by passing an order under this section.

(2.) In the first place, it is quite clear from certain provisions of the Act that the legislature intended the provisions to apply in both cases. The language of Section 2 is wide enough to cover them both.

(3.) That an order in execution directing a sale of the property in the manner pointed out in Section 2 falls within that section is clear from Section 8, which treats such an order as a decree within the meaning of Section 2 of the Civil P. C.. That is. but for Section 8, such an order might not have been a decree in the strict sense of the term. It was not necessary to make it a decree by means of Section 8, if Section 2 was intended not to apply to but to exclude such orders. An order directing a sale in the manner prescribed in Section 2 is superfluous, if the decree passed in the suit has itself directed such a sale. It is only where the decree gives no such direction that the necessity can arise for an order for sale in execution under Section 2. Hence the Legislature provide by Section 8 that such an order must be treated as a decree. And that again is made more clear still by Section 7, Clause (b), which provides that, when any property is directed to be sold under this Act under a decree or order, the procedure to be followed shall be that prescribed by the rules of this Court, if any, and, until such rules are made, by the procedure prescribed in the Civil P. C. in respect of sales in execution of decrees.