Jagat Narayan, J.—This is a revision application by one of the defendants against an order of the executing court dismissing his application purporting to be under sec. 3(1) of the Partition Act 1893.

2. Bhikam Chand respondent No. 1 instituted a suit for the partition of two properties one measured about 167 sq. yds. and referred to as house and the other measured about 57 sq. yds. and referred to as a bara. It is not disputed that the share of Bhikam Chand in these properties is 3/5th, the share of Ramgopal applicant is 1/5th and the remaining l/5th is owned by Karnidan, Ramkishan and Jaikishan. In para 9 of the plaint it was alleged by the plaintiff that the Bara was indivisible and it was prayed that it may be auctioned amongst the co-sharers. Further it was stated that if the court was of the opinion that the bigger property was also indivisible that may also be sold by auction amongst the sharers. In para 9 of the written statement Ramgopal defendant admitted that the smaller property was indivisible and agreed that it should be sold by auction amongst the co-sharers. He alleged that the bigger property was also indivisible and should also be sold by auction amongst the co-sha

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