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1990 Supreme(AP) 192
Andhra Pradesh High Court
Judges : I.P.RAO
Coroline Celline Fernandez - Appellant
Versus
A.J.Fernandez - Respondent
C.R.P. No. 1605/86
Decided On : 04-19-90
Advocates Appeared :
Mr. C. Poornaiah,Mr. Bankatlal Mandhana,Mr. S. Krishna
Headnote:PARTITION ACT, 1893 - Secs. 2, 3 and 8 - CIVIL PROCEDURE CODE, Section 151 - Preliminary decree in suit for partition of a house property which is not capable of division among all co-sharers - Application filed under Section 3 read with Section 151 C.P.C. by minority share-holders seeking permission to purchase majority share of other share-holders - Appeal against order of Court allowing of application - Not maintainable.
Held : The appeal is not maintainable. Exercising power under Sections 2 and 3 of the Act is not the only course open to the Court while effecting partition of property which is not capable of convenient division and it is open to the Court de hors the provisions ·of the Act, That being the case, though Section 3 of the Act under which the Application was filed is not applicable the order passed by the trial Court in allowing the application and directing the petitioners herein and the fourth respondent is deemed to be en order passed under Section 151 of the Code of Civil Procedure which provision was invoked by the petitioners in the application. The application filed by the petitioners cannot be treated as one filed under Section 2 of the Act because the prayer therein is not to direct sale of the property and distribution of the sale proceeds among the sharer". The Partition Act being a special enactment, the right of appeal is regulated by the provisions of the Act but not by general provisions of the Code of Civil Procedure.
An appeal is provided only against orders passed under Sections 2, 3 or 4 of the Act but not otherwise. In the absence of an application under Section 2 of the Act, the Respondents cannot exercise option under Section 3 of the Act to purchase the majority shares in the suit property.
( 1 ) THIS revision arises under the partition Act, 1893 (Act 4 of 1893) (herein after referred to as the Act ). The facts leading to the filing of the above revision petition are briefly as follows:
( 2 ) OS No. 1682 of 1978 on the file of the Court of the 8th Assistant Judge, city Civil Court, Hyderabad was filed for partition of the house bearing No. 5-9-838. Gunfoundry, Hyderabad (herein after referred to as the suit property) and a preliminary decree was passed. The plaintiffs filed IA No. 29 of 1980 for passing of the final decree and for determination of mesne profits. During the pendency of the final decree proceedings, the petitioners herein filed IA No. 690 of 1983 under section 4 of the Act and Section 151 of the Code of Civil Procedure seeking permission to purchase the 2/12th share of the fifth respondent, That petition was allowed on 28-11-1983 and that order having become final, the petitioners paid the value fixed by the court and purchased the 2/12th share. The petitioners filed IA no 1100 of 1983 under Section 3 of the act read with Section 151 of the Code of civil Procedure seeking permission to purchase the remaining 3/12th share belonging to respondents 2 to 4. Respondents herein filed I A 352 of 1985 under Section 4 of the act read with Section 151 of the Code of civil Procedure seeking permission to purchase the 10/12th share of the petitioners herein in the suit property. The learned 8th Assistant Judge, City Civi! Court, hyderabad dismissed IA No, 352 of 1985 on 23-8-1985 holding that respondents 1 and 2 herein are not entitled to purchase the 10/12th share of the petitioners herein in the suit property. The same learned assistant Judge by a separate order dated 23-8-1985 has allowed IA No. 1100 of 83 permitting the petitioners herein to purchase the remaining 3/12th share of the respondents 2 to 4. The respondents herein filed WP No. 15119 of 1986 challenging the vires of Section 4 of the Act. That writ petition was dismissed. They filed cma No 333 of 1985 challenging the order in IA No. 352 of 1985. They have also filed CMA No 306 of 1985 against the order in I A No. 1100 of 1983. The learned chief Judge (Temporary) City Civil Court hyderabad disposed of both_the CM As by a common order dated 24-2-86 allowing cma No. 306 of 1985 and dismissing cma No. 333 of 1985. In the result, the order of the learned 8th Assistant Judge in ia No. 352 of 1985 stands confirmed whereas the order of the learned 8th Assistant judge in IA No 1100 of 1983 is set aside.
( 3 ) THE petitioners filed this revision petition against the order in CMA No 306 of 1985. The learned counsel for the revision petitioners argued that the lower appellate court should have dismissed CMA no 306 of 85 on the same grounds on which CMA No 333 of 1985 was dismissed that in IA No. 690 of 1983 the petitioners were permitted to purchase the 2/12th share of the fifth respondent and that the court having permitted the petitioners to purchase the fifth respondent s share the respondents cannot be permitted to purchase the share of the petitioners which constitutes a major share of the suit property. The learned counsel further submitted that though the petitioners have filed IA No. 1100 of 1983 under Section 3 of the Act read with Section 151 of the Code of Civil procedure, Section 3 of the Act has no application; that as such the order of the learned 8th Assistant Judge allowing IA no. 1100 of 1983 is deemed to be an order passed under Section 151 of the Code of civil Procedure and as such the appeal filed against that order is not maintainable he submitted that an appeal is maintainable under Section 8 of the Act only against an order for sale made by the court under Sections 2, 3 or 4 of the Act which shall be deemed to be a decree within the meaning of Section 2 of the Code of Civil procedure. Therefore, he argued that the learned Additional Chief, Judge has committed an error in entertaining an appeal against the o
