An application under Section 4 of the Partition Act, 1893 is maintainable even at the execution stage.

1. THIS revisional application under Article 227 of the Constitution is directed against order no.28 dated June 16, 2008 passed by the learned Civil Judge (Senior Division), Basirhat, District - 24 Parganas (N) in Title Suit No. 1 of 2006, being a suit for partition. By the impugned order, the learned Judge while allowing an application for final decree preferred by the defendant no.1 in the suit (opposite party no.1 herein) directed him to deposit Rs.500 in cash and requested the learned Civil Judge (Senior Division) 2nd Court, Barasat to suggest the name of a survey knowing pleader commissioner for drawing up the preliminary decree in final form.

2. IT appears to be the claim of the petitioner in the revisional application, the plaintiff in the suit, that he together with the proforma opposite party herein, Moyna Bibi, had jointly purchased the suit property being a plot of land measuring 35 satak, being Dag No.8024, Khatian No. 360, L.R. Khatian No. 2486/1 and 2171/1, J.L. No. 62 in Mouza Zafarpur, P.S. Basirhat, District- 24 Parganas (N) from the vendors for valuable consideration by a registered deed of conveyance; that, after such purchase, the petitioner constructed a dwelling house for his family comprising himself, his wife, sons and daughter-in-law (Moyna Bibi) and constructed a garage, excavated a pond and planted several trees on a portion of the said land measuring 24 satak out of 35 satak; that, Moyna Bibi sold her share in the dwelling house to the defendant no.1, a complete stranger, by a registered deed without disclosing her intention to sell her share to the petitioner; that, a proceeding initiated under Section 8 of the West Bengal Land Reforms Act, 1955 by the petitioner failed to bring him success since the conditions of preemption were not fulfilled; that, the petitioner instituted the suit for partition whereupon the defendant no.1 entered appearance and filed his written statement claiming partition of the dwelling house; that, preliminary decree in the suit was passed on May 18, 2007 by the learned trial Judge, whereafter the defendant no.1 filed an application for separation and allotment of his share in the suit property; that, the defendant no.1 neither being related by blood nor by marriage to the family of the petitioner and being a stranger having no right to purchase the share of Moyna Bibi, the petitioner filed an application under Section 4 of the Partition Act, 1893 registered as Misc. Case No.13 of 2007; that, an application under Order 39 Rules 1 and 2, Civil Procedure Code followed at the instance of the petitioner in connection with the said misc. case and upon a contested hearing the trial Judge by an order dated February 16, 2008 restrained the defendant no.1 from interfering with the possession of the petitioner in respect of the suit property till the disposal of the said misc. case; that, a written objection was filed by the petitioner to the application for drawing up final decree filed by the defendant no.1 wherein he contended that till such time the said misc. case is not disposed of, the application for final decree ought not be considered; and that, thereafter, the impugned order was passed on June 16, 2008.

Mr. Verma, learned advocate representing the petitioner contended that the learned trial Judge acted illegally in allowing the application for final decree without giving due regard to the fact that Misc. Case No.13 of 2007 is pending. He referred to the decision of the Supreme Court reported in (1996) 11 SCC 446 (Ghantesher Ghosh v. Madan Mohan Ghosh) in support of his submission that once the application for drawing up the final decree is allowed without any decision on the application under Section 4 of the Partition Act, the petitioners right as claimed therein would be legally lost and, therefore, no order on the application filed by the defendant no.1 ought to have been passed before disposal of the said misc. case. The decision reported in (2000) 10 SCC 562