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Report No. 86

8.13. Section 8-Appeals.-

This takes us to section 8, which provides that any order for sale made by the Court under sections 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure. As is well known, such provisions have important consequences as to appealability of the orders in question. For example, where the trial court allows the sale, but the appellate court refuses to pass an order for sale, and thus reverses the order of the trial court, the order of the trial court is a "decree" and is subject to second appeal if the requirements of a second appeal under section 100 of the Code of Civil Procedure are fulfilled.1

An order rejecting an application under section 4 is not, however, a "decree" as it does not fall within the section; but its correctness can be questioned in appeal from the final partition decree.2-3 This is also the position regarding an order rejecting an application under section 3.4 We think that an order rejecting an application for sale should also be treated as a decree in view of its importance. Section 8 should be revised as under:-

"8. Orders for sale to be deemed decrees.- Any order for sale or rejecting an application for sale made by the Court under section 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure, 1908."

1. Satyabhama v. jatindra Mohan, AIR 1929 Cal 270.

2. Bhuban Mohan v. Brojendra Chandra, AIR 1941 Cal 311.

3. Wali Mohammad v. Shamsul Hug, 1967 All Lj 379, dissenting from AIR 1937 Nag 4.

4. Nitish Chandra v. Promode Kumar, AIR 1953 Cal 18, para. 9 (R.P. Mookerjee andLahiri, JJ.).



The Partition Act, 1893 Back




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