- (1.) Having heard learned Senior Counsel for the parties, in our view, from the impugned judgment two points arise for our consideration: (I) Whether the application under Section 4 of the Partition Act, 1893 was maintainable at the execution stage (ii) Even if it is maintainable, whether Section 4 of its own even applies to the facts of the present case and whether the property in question was a dwelling house belonging to an undivided family as laid down in that section
(2.) So far as the first point is concerned, the High Court by its impugned judgment has held that the application was maintainable even at the execution stage. That decision of the High Court is fully governed by a decision of this Court in Ghantesher Ghosh v. Madan Mohan Ghosh wherein this Court has taken a view that Section 4 of the Partition Act can be pressed into service even at execution stage after the final decree in partition suit is passed. Consequently, the view taken by the High Court on this point remains well sustained.
(3.) That takes us to the consideration of the second point. So far as this point is concerned, learned Senior Counsel for the appellant, Mr Mishra vehemently contended placing reliance on objections to the Section 4 application as filed before the executing court, that amongst other objections, objection as per para (g) was required to be properly thrashed out on evidence. Objection (g) reads as under: "An application must relate to a dwelling house of an undivided family nor is it at present a dwelling house for the purpose to invoke the provision of Section 4 of the said Act. Even considering the position of the house before the final decree it cannot be said to be a dwelling house of an undivided family There are 8 families of different States of India, viz. , Uttar Pradesh, Rajasthan, West Bengal and Punjab in the said house. Apart from these families there are business houses of printing press, electrical goods, repairing workshop, tailoring shop, furniture shop and cloth shop. Above all there is a school for girls run by the State of West bengal where a large number of students come to take their lessons. Only the two sons of the applicant (deceased) reside in one room of block 'c' of the said premises, which has been allotted to them in the final decree and not any other member of alleged family. Such a house cannot be called a dwelling house for the purpose of Section 4 of the partition Act. ";