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-sharers. The trial court sold the smaller property to Karanidan Ramkishan and Jaikishan respondents who were directed to pay Rs. 27/- by way of compensation to the others. It held that the bigger property was divisible and directed its division by metes and bounds. Bhikamchand preferred an appeal against this decree. The appellate court held that the bigger property was indivisible and directed its sale by auction amongst Bhikamchand and Ramgopal. Against that decree Ramgopal has preferred a second appeal which is pending.

3. Bhikamchand applied for the execution of the decree of the appellate court dated 3.4.62. Ramgopal filed an application purporting to be under sec. 3(1) of the Partition Act that the court should order a valuation of the property and should sell it to him. This application was rejected and Ramgopal has preferred the present revision application against that order. A number of preliminary objections were taken on behalf of Bhikamchand. It is however not necessary to decide them as in my opinion the application of Ramgopal was rightly rejected.

4. Bhikamchand filed an application in the trial court on 27.5.61 in which he alleged that both the properties were indivisible and they should be sold by auction amongst the co-sharers. The contention on behalf of Ramgopal is that this application was an application under sec. 2 of the Partition Act and as sale has not yet taken place he is entitled to make an application under sec. 3(1) of the Partition Act. Reliance is placed on Nitish Chandra vs. Promode Kumar(l).

5. The contention on behalf of Bhikamchand is that his application was hot under sec. 2 of the Partition Act as he did not ask for a public auction of the properties but prayed that they may be sold by auction amongst the co-sharers. Reliance is placed on Ramprasad vs. Mt. Mukandi(2) and Mohit Krishna Vs. Pratab Chandra(3). Secs. 2, 3 and 6 of the Partition Act run as follows —

Sec. 2 "Whenever In any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court, that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein or of any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.

Sec. 3 "(1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder app

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