JAGAT NARAYAN, J. - (1.) THIS is an execution second appeal by the minor sons of one Daulal against an order of the appellate court.
(2.) THE relevant facts are these. Sundarlal and Daulal were real brothers who were members of a ioint Hindu family. Sundarlal mortgaged his half share in a Bada to Kishanlal on 30 -1 -49. Kishanlal brought a suit for sale which was decreed arid in execution of it he purchased the undivided share of Sundarlal in the Bada at the auction sale. On 1 -7 -63 Kishanlal filed a partition suit in which a preliminary decree was passed on 15 -1 -65. A commissioner was appointed and on receipt of his report Kishanlal made an application under Section 2 of the Partition Act for the sale of the Bada instead of dividing it. On this application the court fixed Rs. 3,000/ - as the reserved price and ordered public sale under Section 2 of the Partition Act. No bid was offered by any one. Kisnanlal then applied for reducing the reserved price to Rs. 1500/ -and ordering re -sale. At this the Court fixed the reserved price at Rs. 1200/ - and ordered public sale on, 8 -9 -65. The date of sale was 18 -10 -65. Before the sale took place Daulal's minor sons filed an application under Section 3(1) of the Partition Act for leave to buy the share of Kishanlal at the valuation made by the Court. No notice of this application was given to Kishanlal, but he had knowledge of it and after hearing arguments the court fixed Rs. 1200/ - as the valuation of the Bada and passed an order for the sale in favour of the minor sons of Daulal for Rs. 600/ -. It was contended on behalf of Kishanlal before the trial court that as an order for public sale had already been made under Section 2 of the Partition Act it was not open to the minor sons of Daulal to make an application under Section 3(1). Reliance was placed on Angamuthu Mudaliar v. Ratna Mudaliar, AIR 1925 Mad 1234. On behalf of the minor sons the decision in Nitish Chandra v. Promode Kumar, AIR 1953 Cal 18, was referred to. The view taken in the Calcutta case was accepted by the trial court.
(3.) KISHANLAL filed an appeal which was allowed by the District Judge who preferred to rely on the Madras decision referred to above.;