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Report No. 86

8.14. Section 8 and order for sale passed outside the Act.-

It has been held1 that even where the order for sale is passed in a case which falls outside the Partition Act (i.e. without an application by the parties), after the passing of a preliminary decree for partition, the order can be viewed as a further preliminary decree and is therefore appealable. The order has a general effect on the entire proceedings in the suit, and precludes the possibility of the plaintiff getting an allotment in specie of his share, and the order thus negatives the right to which he is entitled as a co-sharer, and is final and conclusive so far as the trial court is concerned. The point discussed above does not, however, necessitate any change in the section.

1. Vissanna v. Visabrahmam, AIR 1957 AP 25 (Vishwanatha Sastri, J.), followed in Mayimu v. Maliyaminal, AIR 1968 Ker 282.

The Partition Act, 1893 Back

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