An application under Section 3 of the Partition Act for sale of property can be made after a request for public sale under Section 2, irrespective of the timing of the order under Section 2.

JUDGMENT : This is an execution second appeal by the minor sons of one Daulal against an order of the appellate court.

2. The relevant facts are these. Sundarlal and Daulal were real brothers who were members of a joint Hindu family. Sundarlal mortgaged his half share in a Bada to Kishanlal on 30-1-49. Kishanlal brought a suit for sale which was decreed and in execution of it he purchased the undivided share of Sundarlal in the Bada at the auction sale. On 1-7-63 Kishanlal filed a partition suit in which a preliminary decree was passed on 15-1-65. A commissioner was appointed and on receipt of his report Kishanlal made an application under Section 2 of the Partition Act for the sale of the Bada instead of dividing it. On this application the court fixed Rs. 3,000/- as the reserved price and ordered public sale under Section 2 of the Partition Act. No bid was offered by any one. Kishanlal then applied for reducing the reserved price to Rs. 1500/-and ordering re-sale. At this the Court fixed the reserved price at Rs. 1200/- and ordered public sale on 8-9-65. The date of sale was 18-10-65. Before the sale took place Daulal's minor sons filed an application under Sec. 3 (1) of the Partition Act for leave to buy the share of Kishanlal at the valuation made by the Court. No notice of this application was given to Kishanlal. but he had knowledge of it and after hearing arguments the court fixed Rs. 1200/- as the valuation of the Bada and passed an order for the sale in favour of the minor sons of Daulal for Rs. 600/-.

3. It was contended on behalf of Kishanlal before the trial court that as an order for public sale had already been made under Section 2 of the Partition Act it was not open to the minor sons of Daulal to make an application under Section 3 (1). Reliance was placed on Angamuthu Mudaliar v. Ratna Mudaliar, AIR 1925 Mad 1234. On behalf of the minor sons the decision in Nitish Chandra v. Promode Kumar, AIR 1953 Cal 18, was referred to. The view taken in the Calcutta case was accepted by the trial court.

4. Kishanlal filed an appeal which was allowed by the District Judge who preferred to rely on the Madras decision referred to above.

5. A preliminarv objection was taken that no appeal lies against the order of the appellate court. This objection has no force. Under Section 8 of the Partition Act an order for sale made by the court under Sections 2, 3 or 4 is, deemed to be a decree. The order of the trial court directing sale under Section 3 was thus a decree. The order of the appellate Court directing sale under Sec. 2 is also a decree. An appeal lies against it.

6. I have carefully considered the reasoning given in the Madras and Calcutta decisions. I am respectfully in agreement with the view taken in the Calcutta case. The words "before a court makes an order under Sec. 2" are not to be found in Sec. 3. All that Section 3 requires is that the application should be filed after a request has been made by the co-sharers under Sec. 2 of the Act for the public sale of the property. In the absence of any restrictive provision in Sec. 3 it cannot be held that the limiting point of time when the application should be made under that section is the date on which the order under Section 2 is made.

7. Of course if a sale actually takes place no application under Sec. 3 can be made till that sale is set aside.

8. The valuation made by the trial court was rather low. Half the property was sold at the auction sale on 19-11-62 for Rs. 650/-. Its value on 16-10-1965 must have increased. Kishanlal applied for fixing the reserved price at Rs. 1500/-. It will be fair to value the property at Rs. 1500/- on 16-10-65.

9. I accordingly allow the appeal, set aside the order of the appellate court and direct the sale to the sons of Daulal of Kishanlal's share for Rs. 750.

10. In the circumstances of the case, I leave the parties to bear their own costs.

11. One month's time is granted to the sons of Daulal to deposit the balance of the price in