The right to apply under Section 3(1) of the Partition Act arises the moment a request has been made under Section 2, and an application under Section 3(1) can be made even after an order has been made under Section 2, provided the order under Section 2 is set aside.

VEERASWAMI, C.J. :- The matter comes before us on a reference by Ganesan, J. The learned Judge thought that there was a conflict of decisions and therefore it should be resolved. But on the view we are inclined to take there is no conflict of decisions. The question is at what stage an application under Section 3 (1) of the Partition Act of 1893 should be made, is it before an order has been made under Section 2 or an application under Section 3 (1) could be made even thereafter, but before the sale is actually held. That is how the question has been propounded by the referring Judge.

2. On a plain reading of Sections 2 and 3, it seems to us that the right to apply under Section 3 (1) arises the moment a request has been made under Section 2. If a direction for sale of the property has been given under Sec. 2, it does not follow that an application under Section 3 (1) cannot be made thereafter. All that is necessary is that in order that an application under Section 3 (1) may be considered, the petitioner should apply to have the order under Section 2 set aside because, so long as that order stands, the application under Section 3 (1) does not call for consideration. It may be even visualised that a sale has taken place under Section 2. Even in such a case, as it seems to us, there is no bar to be inferred from the two sections, to an application being made under Section 3 (1), but only it cannot be considered unless the order for sale made under Section 2 is set aside. That we think is the correct approach. We do not think that the question was considered in Angamuthu Mudaliar v. Ratna Mudaliar, ILR 48 Mad 920 : (AIR 1925 Mad 1234). As to Jayarama v. Annamalai. ILR (1966) 2 Mad 530, we agree with Kailasam, J. that a right to apply under Section 3 (1) accrues the moment a request under Section 2 has been made to the court. Beyond that stage, an application may always be permissible, but only, as we said, any order made under Section 2, or sale held pursuant to that order will have to get out of the way first before an application under Section 3 (1) can be taken up for consideration.

3. On that view of the matter, we set aside the order of the court of the District Munsif and remit the application under Section 3 (1) to that court for disposal; along with any application which the petitioner may have filed for setting aside the order for sale under Section 2. If no such application is made to set aside the order under Section 2, the application under Section 3 (1) will naturally have to be dismissed.

4. The petition is accordingly ordered. No costs.

Order accordingly.