Raman, J.

This is an appeal against the order of remand in A.S.4/2003 on the file of the District District Court, Kozhikode. The appellants are defendants 1 and 7, who are respondents 1 and 7 in the appeal. The suit was one for partition claimed to be on the basis of title obtained from court sale. A short, difficult, but interesting question arises in this appeal is as to whether an auction purchaser, who purchased the undivided share in an immovable property sold in execution of a money decree whose execution petition for taking delivery dismissed as time barred, is entitled to maintain a separate suit for partition and for separate possession of his share and whether such a suit is barred by Section 47 of the Code of Civil Procedure?

2. The suit property belonged to defendants 1 to 6 and their father one late Madhavan. The said Madhavan was adjudged insolvent on 31.7.1975. His 1/7th share was sold in court auction and knocked down in favour of the 7th defendant. The other six shares remained with Defendants 1 to 6. The 8th defendant filed O.S. 254/1984 before the Sub Court, Kozhikode, for recovery of money from the first defendant. That suit was decreed and execution petition was filed and 1/7th share of the first defendant was brought to sale and in court auction, it was knocked down in favour of the 8th defendant. The sale was eventually confirmed in favour of the 8th defendant. The sale sannad Ext.A2 was issued in favour of the 8th defendant on 12.9.1992 and thereafter, the 8th defendant sold his right under the sannad to the plaintiff by Ext.A3 dated 15.2.1993. Thereafter, E.P. 129/1993 was filed (Ext.B1) by the present plaintiff and the 8th defendant jointly seeking delivery of the property through court under Order 21 Rule 95 of the Code of Civil Procedure on 20.3.1993. By Ext.A4 order, the said Execution Petition was found to be time barred and closed the matter by endorsement dated 30.10.1996. It is thereafter, that the present suit O.S. 2/1997 was filed before the Sub Court, Kozhikode on 4.1.1997 seeking partition and separate possession as stated earlier. By judgment and decree dated 16.11.2002, the trial court dismissed the same. On appeal, the appellate court, by its order impugned in this appeal, allowed the same by way of remand to the trial court. Aggrieved thereby the present appeal is preferred by the contesting defendants.

3. The suit for partition was resisted by the contesting defendants

mainly on the ground of maintainability. The trial court found that the plaintiff has no title over the plaint schedule property and the suit is barred under Section 47 of the Code of Civil Procedure. The appellate court reversed the said finding. The contention advanced by the defendants was that in the absence of any symbolic possession taken pursuant to the sale sannad issued in the earlier proceedings, a subsequent suit for partition and separate possession is barred under Section 47 of the Code of Civil procedure. This plea was accepted by the trial court. But the appellate court held that even though the auction purchaser and the transferee could not succeed in getting symbolic possession through Ext.A4 proceedings, that will not affect the title to the plaint schedule property. According to the appellate court, in order to maintain a suit for partition, it is not a condition precedent that the plaintiff should be in possession of the property with other co-parceners and that is why separate provision is made in Section 37 of the Court Fees Act in respect of payment of court fee when the plaintiff is out of possession and when he is in joint possession with the other co-owners.

4. Learned counsel Sri. P.B. Krishnan appearing on behalf of the appellant would submit that the finding of the appellate court that the suit is maintainable and the further finding that the plaintiff has got valid title over the 1/7th share on the plaint schedule property and he is entitled to a partition by filing the suit is contr