A sale held in a partition suit pursuant to the court's direction in the preliminary decree is not appealable under O. 21, R. 19, C. P. C.

JUDGMENT :- This Miscellaneous Civil Appeal is directed against an order dated 15th Sept., 1977 passed by the Senior Civil Judge, Margao refusing to set aside a sale held in Special Civil Suit No. 16/76.

2. The facts leading to the passing of the impugned order may be stated as under:-

The respondent No. 1 and her late husband Balbino Xavier Joaquim Caridade Gomes brought a suit for partition in respect of certain undivided land together with a house standing thereon known as "Forte Navelim" situated at Navelim in Special Civil Suit No. 16/76 against the present appellants in the Court of Senior Civil Judge, Margao. Present respondents Nos. 2 to 6 are the legal heirs of the late Balbino Xavier Joaquim Caridade Gomes. The suit was decreed preliminarily by the judgment and decree dated 20th Dec., 1976. According to the decree the defendants have to pay to the plaintiff the amount of Rs. 4,366.67 besides interest at the rate of 6% from the date of filing of the suit till its actual payment as per the agreement reached by the parties. As regards division of the suit property and the house, since its division and separate possession was not found convenient according to the shares 4/6 and 2/6 the direction in the decree was that the property and the house be sold in public auction so that the total value obtained be allotted to the parties according to their proportionate shares in case the parties do not agree to the suggestion of the Commissioner contained in para. 5 of his report (Exh.30). The appeal preferred to this Court against the said judgment and decree has been dismissed (vide copy of judgment placed at para.107 of the paper book). After dismissal of the appeal as stated above the court held the auction sale of the suit property on 14th July, 1977. The present appellant being aggrieved by the said sale filed an application on 28-7-1977 under O. 20, R. 18 (1) and under O. 21, Rr. 11 (2), 72 (3), 90 (1) and 90 (2), C. P. C. praying inter alia for setting aside the sale. The learned Civil Judge as already stated, having rejected the prayer this appeal has been filed.

3. Mr. Ataide Lobo, learned counsel for the respondents has raised a preliminary objection regarding the maintainability of the appeal. According to him the provisions contained in O. 21, R. 19 are not applicable because the sale was not held in execution proceedings but in the suit itself pursuant to the direction of the court contained in the preliminary decree duly confirmed by the Appellate Court. His further submission is that the provisions of the Partition Act 1893 not being applicable to the territory of Goa, Daman and Diu advantage cannot be had of the said Act to maintain the appeal. Lastly his submission is that the order having been passed in the suit the appellants have a remedy to challenge the decree when made final. In case the Court is inclined to hold otherwise, he has argued that the appellants not having been able to establish that they have sustained substantial injury by reasons of irregularities or fraud, if any, by the sale, are, also not entitled to succeed.

4. Mr. S. K. Kakodkar, learned advocate for the appellants does not dispute that the appeal as such is not maintainable; but he argues that when the Court has purported to act under the provisions of O. 21, C.P.C there appears to be no reason why the appeal will not be maintainable. In the alternative, he argues that in case the appeal is not maintainable the same may be admitted as revision and for admitted breaches of the provisions of the Civil P.C. as mentioned in the petition, the sale be set aside. He agrees that the provision of the Partition Act, 1893 are not applicable to this territory. He, however, raises another objection which according to him cuts at the very root of the preliminary decree. The preliminary decree is a nullity having been passed in favour of the deceased plaintiff No.1 without bringing his legal representatives on record. Such a decree can never be implem

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