1. This application under Sec.115 of the Code of Civil Procedure (hereinafter referred to as the Code) by Tipan Raut, who was the plaintiff in the trial Court, is directed against the order dated the 16th January, 1974, pass-ed by the Munsif of Patna in Title Suit No. 36 of 1968, refusing to convert the petitioners suit into a proceeding under Sec. 47 of the Code.

2. This application came up for decision before L. M. Sharma, J., who, by an order dated the 27th February, 1975, was pleased to refer it to a Division Bench, and this is how it has come be-fore us for disposal.

3. In order to appreciate the points involved in this application, it will be necessary to state some material facts. The petitioner instituted the said Title Suit on the 17th February, 1968. It will be relevant to quote in extenso the Eng-lish rendering of the statements of the petitioner in Paragraphs Nos. 3, 4 and 5 of the plaint:-

"3. That no notice under Order XXI Rule 22 (C. P. C.) was, by any means, sent to the plaintiff, nor was the same served upon him. And likewise, neither processes for attachment; nor proclamation for sale was served on the spot. All the proceedings including that for fixation