P.J.S. JAYARAMA CHETTIAR Vs. D. ANNAMALAI CHETTIAR

JUDGEMENT

(1.) The first Defendant in Original Suit No. 136 of 1958 District Munsif's Court, Vellore, is the Petitioner in Civil Revision Petition No. 1240 of 1965 and the Appellant in Appeal Against Appellate Order No. 123 of 1963. The first Defendant and the Plaintiff are sons of sisters and were each entitled to a half -share in the property which is a house. A preliminary decree granting a half -share to the Plaintiff was followed by a final decree, which was confirmed by this Court in Second Appeal No. 1234 of 1961. The Plaintiff -Respondent filed Interlocutory Application No. 1395 of 1962, for passing of the final decree. He also filed Interlocutory Application No. 1500 of 1962 under Sec. 2 of the Partition Act and Sec. 151, Code of Civil Procedure, praying for the sale of the property on the ground that it could not be conveniently divided as between the sharers. The trial Court held that the property cannot be conveniently divided and directed the sale. On appeal this order was confirmed. Against the order directing sale of property under Sec. 2 of the Partition Act, the first Defendant has filed Appeal Against Appellate Order No. 123 of 1963.

(2.) After the disposal of Interlocutory Application No. 1500 of 1962, the first Defendant filed Interlocutory Application No. 1338 of 1963 under Sec. 3 of the Partition Act offering to purchase the half -share of the house belonging to the Plaintiff. The trial Court held that it had no jurisdiction to pass an order on the application under Sec. 3 as it had already passed an order under Sec. 2 directing the sale of the property. The Defendant has preferred Civil Revision Petition No. 1240 0f 1965 contending that the trial Court had failed to exercise the jurisdiction vested in it by law.

(3.) The question that arises for consideration in the civil revision petition is whether Interlocutory Application No. 1338 of 1963 which was filed under Sec. 3 of the Partition Act is maintainable after an order for sale has been made in an application under Sec. 2 of the Partition Act. The answer to this question depends upon the construction of Ss. 2 and 3 of the Partition Act TV of 1893. The two Ss. may be usefully extracted. They read: