- (1.) THIS appeal raises the question whether an appeal lies from an order dismissing objections to a sale held under the provisions of the Partition Act.
(2.) ON 27-2-1952 Harish Chandar brought a suit against his brother Hukum Chand for possession by partition of a shop situate in Palwal and for the recovery of mesne profits in respect of that shop. A preliminary decree was granted on 30-11953, but no appeal was preferred from that decree. Proceedings were taken for partition of the property by metes and bounds, and in the course of these proceedings the parties agreed that the shop should be sold and that the proceeds of the sale should be distributed between the co-sharers. The shop was sold in due course for a sum of Rs. 4,300 and the local Commissioner submitted a report in respect of the mesne profits. Hukum Chand objected to the sale and to the mesne profits awarded by the local Commissioner. The Court overruled the objections, passed a final decree for possession of the entire suit property in favour of the plaintiff, directed the Commissioner to pay a sum of Rs. 2,150/-less half commission of the sale to the defendant as his share in the suit property, and directed the defendant to pay a sum of Rs. 270/- as mesne profits to the plaintiff.
(3.) THE defendant was dissatisfied with the order of the trial Court and preferred an appeal to the Additional District Judge at Gurgaon, but the learned Additional district Judge dismissed the appeal on the ground that the appeal was not properly stamped. When a second appeal was preferred to this Court. a teamed single Judge of this Court held that full ad valorem Court-fee had been paid on the claim in respect of mesne profits, that sale proceedings under the Partition Act are proceedings in the suit and not proceedings in execution, that an appeal from an order of sale passed under the Partition Act is not an appeal under Section 47 of the Code of Civil Procedure, and that the Court-fee on the appeal against the sale was not sufficient. In this view of the case the learned Single Judge allowed the appeal relating to mesne profits and remanded the case to the lower appellate Court for decision of the appeal on the question of mesne profits only. The rest of the appeal was dismissed. The defendant is dissatisfied with the order and has preferred an appeal under Clause 10 of the Letters Patent.;