An application under Section 3, Partition Act, can be filed after an order for sale has been made under Section 2 of the Act, and the valuation made by the commissioner for the purpose of sale under Section 2 cannot be accepted for the purpose of sale under Section 3.

( 1 ) THIS is an appeal by plaintiffs 1 and 2 in a suit for partition, and it is directed against an order, dated 8th July 1950, made by Sri P. N. Lahiri, Subordinate Judge, First Court, 24 Parganas, refusing the application of plaintiffs 1 and 2 under Section 3, Partition Act (Act no. 4 of 1893 ).

( 2 ) THE subject-matter of dispute is premises no. 25a, Harish Mukherjee Road, which is the dwelling house of the parties. A preliminary decree was passed on. 25th January 1949, holding that plaintiffs l, 2 and 3, and defendants l, 2 and 6 had one-seventh share each in the dwelling house, and defendants 3, 4 and 5 jointly had , one-seventh share.

( 3 ) AFTER the passing of the preliminary decree, the Court appointed a Commissioner for the purpose of ascertaining whether the dwelling house could be partitioned amongst the seven co-sharers. The Commissioner submitted a report stating that it was not possible to divide the dwelling house by metes and bounds into seven allotments. Some of the co-sharers' agreed to take a joint allotment before the Commissioner but two of them subsequently resiled from that position.

( 4 ) ON 14th January 1950, defendant 2 filed a petition with a prayer that the entire house should be put up to sale under Section 2, Partition Act; and it appears that this petition was supported by some other co-sharers.

( 5 ) ON 25th January 1950, the learned Subordinate Judge recorded an order which runs as follows :"co-sharers owning five-sevenths share are now pressing for sale. The Commissioner was asked to explore the possibilities of partition when the four-sevenths co-sharers-wanted to take a joint allotment. As that arrangement has failed, I do not consider that partition will be feasible. I therefore direct a sale of the Bhowanipore property. "

( 6 ) THIS order was evidently made under Section 2,. Partition Act.

( 7 ) ON 8th July 1950, plaintiffs l and 2 filed an application for buying up the shares of the co-sharers at whose instance the order for sale under Section 2, Partition Act was made, and this application was filed under the provisions of Section 3, Partition Act. The Court below held that as there had already been an order under Section 2, Partition Act, the application under Section 3 of the said Act was not maintainable,, and it accordingly rejected that application. Against this order, plaintiffs 1 and 2 have filed the present appeal.

( 8 ) ON behalf of the respondent, Mr. Gupta has raised a preliminary objection as to the maintainability of the appeal. It has been argued that an order for sale made under Section 3, Partition Act, is to be deemed to be a decree under Section 8, Partition Act, but an order rejecting an application under Section 3 cannot be said to be a decree within the meaning of Section 8.

( 9 ) IN support of this proposition, Mr. Gupta has relied upon the decision in Bhuban Mohan v. Brojendra Chandra, 45 cal. w. N. 74, where a Division Bench of this Court has held that there is nothing in Section 8, Partition Act, to indicate that an order rejecting an application for sale should be deemed to be a decree. Although this was a case under Section 4, Partition Act, we think that the reasons given by the learned Judge apply with equal force to the case of an order rejecting an application under Section 3, Partition Act. We accordingly uphold the preliminary objection and hold that the appeal is not maintainable.

( 10 ) THE next question is whether the memorandum of appeal is to be treated as an application for revision under Section 115, Civil P. C. In the circumstances of this case, we have come to the conclusion that we should give the appellants an opportunity of treating the memorandum of appeal into a petition of revision, and we have heard the learned Advocates on both sides on that footing.

( 11 ) ON behalf of the petitioners, it is contended that the learned Subordinate Judge failed to exercise a jurisdiction vested in him by law ,in coming to the conclusi