J.M.Shelat:-

(1) These two revision applications are directed against the order dated march 14 1961 passed by the learned third joint civil judge junior division surat accepting the report of the commissioner appointed by him in a partition suit and directing thereby sale by public auction of some of the properties involved in the suit and against the order passed by the learned district judge surat dismissing an appeal filed therefrom on the ground that such an appeal did not lie against the aforesaid order.

(2) The first respondent (the original plaintiff) filed a suit being suit no. 1202 of 1958 against the deceased father of petitioners 1 (1) to 1 (8) and petitioner no. 2 and respondents 2 and 3 being original defendants 1 2 4 and 5. In that suit a consent preliminary decree was passed under which seven joint family properties were ordered to be partitioned amongst the partners the deceased father and respondents 1 2 and 3. Of these seven properties three properties were agricultural lands the partition of which was entrusted to the collector surat. The rest of the four pro - perties consisted of houses and godowns. In respect of these four properties the learned trial judge appointed the fourth respondent as the commissioner directing him to divide these properties by metes and bounds and distribute them according to the respective shares of the parties. On march 13 1961 the fourth respondent made his report in which he pointed out that it was not possible to conveniently partition these porperties by meter and bounds owing to differences and disputes existing between the parties and further that the properties were not capable of being physically partitioned and asked for directions permitting him to dispose them of by public auction. Respondents 1 2 and 3 (the plaintiff and defendants 4 and 5) who between them all had a one - third share in the said properties submitted to the court that they had no objection to the properties being sold by public auction. The petitioners being original defendants 1 and 2 who had a two - third share between them in the said joint family properties were opposed to the properties being sold by public auction. After hearing the parties the learned judge accepted the report of the commissioner and directed that in the circumstances mentioned by the commissioner in his report the four properties should be sold by public auction. The petitioners thereafter filed an appeal in the district court surat but as aforesaid the learned district judge dismissed that appeal on the ground that such an appeal was not maintainable as the order passed by the learned trial judge was not an order under order 26 rule 14 of the civil procedure code and not under the partition act 1893 and was therefore not an appealable order. Civil revision application no. 672 of 1961 is against that order of the learned district judge and civil revision application no. 381 of 1962 is against the original order passed by the learned trial judge.

(3) Two questions arise in these two applications (1) whether the learned district judge was right in dismissing the appeal on the ground that no appeal lay against the impugned order and (2) assuming that no such appeal lay whether the learned trial judge had the power in a parti - tion suit to pass an order imposing a forced sale on the parties.

(4) On behalf of the petitioners who as i have already stated hold a two - third share in the properties in question mr. Kaji urged that the trial court had no power to impose a forced sale on the parties that the parties went to the court for a partition by metes and bounds and to have a share in the properties and not a share in the sale proceeds and that the only power to impose such a sale would be under the partition act 1893 but that the provisions of that act did not apply to the facts of this case and therefore the order was without jurisdiction. He argued that even in a case where the parties were recalcitrant and were not agreeable to have the properties divided by metes and bounds or where the properties were not capable of being conveniently divided and distributed amongst the parties it was not as if the court would be helpless or that there would be a stalemate or that the court cannot grant any relief to the parties. He argued that in such a case the court could resort to three alternate courses (1) to value the property. And allot it to one or more of the shareholders and pay compensation to the rest in lieu of the shares; (2) to value the property by permitting the parties to bid thereby giving a chance to the parties to value the property instead of the court putting its own value and allotting the property to the highest bidder and paying compensation to the rest in consideration of their releasing their shares or (3) to sell the property by public auction to a stranger. Mr. Kaji contended that the first two courses were open to the court but not the third one for under the first or the second course what the court would be doing would be to allot the property to one or more of the co - sharers and equalising the share of the rest by payment of compensation but retaining the property with one or the other of the co - sharers. The third course however was not open to the court for it would be a forced sale on the parties and the property would go to an outsider. Such a sale would mean that the property would not be allotted on distribution to one or more of the members of the family

(5) The question for determination therefore is whether a court trying a suit for partition has the power to order sale of the suit property where it finds that owing to disputes between the parties or the nature of the property it cannot be conveniently divided between the parties. Under order 20 rule 18 of the code the court passes in such a suit a preliminary decree by which the respective shares of the parties are determined and then appoints a commissioner to divide the property in question by metes and bounds. In such a suit for partition the parties go to the court with a prayer that the property should be divided amongst themselves and each of them should be given his respective share therein. Order 26 rules 13 and 14 deal with the procedure to be followed for such division. Under these provisions the court no doubt appoints a commissioner who has to make a report. The court does not act on that report at once but gives an opportunity to the parties to raise objections against that report if they have any and after hearing such objections the court either accepts the report or varies it or rejects it. In the former case it proceeds with the report and passes a final decree while in the latter it appoints another commissioner. So long as the commissioner divides the property according to the respective shares of the parties as determined by the preliminary decree there is no difficulty. But the difficulty arises when the properties cannot be divided according to such shares in specie and the question arises what then is the court to do in such a case.

(6) Mr. Kajis contention was that unless the case falls under the partition act 1893 the court has no power to order sale of a property for that would be tantamount to imposing a compulsory sale on the parties a thing which the parties do not ask in a partition suit. He contended that neither rule 13 nor rule 14 of order 26 empowers the court to sell the property and if a commissioner makes a report sugges - ting such a sale it would not be a report within the meaning of rules 13 and 14 of order 26 and therefore an order confirming such a report would be bad and without jurisdiction. Mr. Kaji argued that knowing that the civil procedure code did not contain any such power to order sale in a partition suit and further knowing that the absence of such power would create difficulties the legislature passed the partition act 1893 giving a limited power to courts to order sales. Sec. 2 of the partition act provides that whenever in any suit for partition in which if instituted prior to the commencement of the act a decree for partition might hate been made it appears to the court that by reason of the nature of the property to which the suit relates or of the number of the shareholders therein or of any other special circumstance a division of the property cannot reasonably or conveniently be made and that a sale of the property and distribution of the proceeds would be more beneficial for all the share - holders the court may if it thinks fits on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards direct a sale of the property and a distribution of the proceeds. Sec. 3 lays down the procedure when one of the sharers undertakes to buy and provides that if in any case in which the court is requested under sec. 2 to direct a sale any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale the court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price ascertained and may give all necessary and proper directions in that behalf. If two or more shareholders severally apply for leave to buy as provided in sub - sec. (1) the court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court. Sec. 4 deals with a partition suit by a transferee of a share in a dwelling house but it is not necessary to recite it as it has no relevance for our purposes. Sec. 8 provides that any order for sale made by the court under secs. 2 3 or 4 shall be deemed to be a decree within the meaning of sec. 2 of the code of civil procedure. It is clear that in the present case the partition act would not apply and there - fore i have to see whether the court had de hors the partition act the power to order sale.

(7) In support of his contention that there is no such power either under order 20 or under order 26 mr. Kaji relied on two decisions of the calcutta high court in nitya gopal v. Pran krishna a. I. R 1952 cal. 893 and probhat kumar v. Rammohan a. I. R. 1958 cal. 177. In nitya gopals case a division bench of the calcutta high court held that a co - sharer in a suit for partition had a right to his undivided share in the property divided into a specific allotment and not merely to the money value of his share in the property. The learned judges observed that the object of a suit for partition was merely an invitation to the court to convert joint possession and title of all the owners into possession in seve - ralty of the different portions of the joint property in accordance with the shares of the co - owners. But the court in such a case had no inherent power of sale in case it found that that property could not be convenie - ntly partitioned or that the partition thereof would affect the intrinsic value of the property. As regards the partition act the learned judges observed that that act conferred on a court in a suit for partition a power of sale in certain specified cases but no general power of sale could be spelt out from the provisions of that act. They also held that sec. 9 of the partition act did not confer any independent power of sale but was merely an enabling section. In probhat kumar v. Rammohan a single judge of that very high court followed the division bench decision and held that apart from the provisions of the partition act 1893 there was no inherent power in a court to order sale of a property even where the court found that a partition by metes and bounds of the property in question could not be conveniently made. It will be noticed that these two decisions are based on two assumptions. One assumption is that the power of a court is confined to divide the property and that there is no power even in unavoidable cases to divide the property otherwise than in specie. The other assumption is that as there is no power in the court to order sale and such absence of power it was thought would result in practical difficulties a limited power was given by the partition act within a limited cope to the court to order sale. But then if a limited power was given to avoid the mischief of a deadlock resulting in a suit for partition such a power surely would not have been made dependent upon a request to be made by a party or parties having individually or collectively an interest equivalent to a moiety or more. If that were so then the court would be at the mercy of such a party or parties and the deadlock would still re - main if such a party or parties were determined not to allow division of the property and thus render a suit for partition by others infructuous that surely could not be the intention with which the legislature enacted the partition act 1893 the assumption therefore in nitya gopals case (supra) is not satisfactory. In my view what the partition act 1893 did was to empower a shareholder or shareholders having in the suit property individually or collectively an interest equivalent to a moiety or more to request for a sale under that act and where such a request was made the court would have to order sale under that act and follow the proce - dure laid down therein. The other assumption also with respect suffers from an infirmity for it would mean that in cases where the partition act does not apply a party bent on being recalcitrant can stultify the power of the court to partition. It also pre - supposed that a power to partition means to divide the property in specie only. Such an assumption not only curtails the power of the court to partition but would lead to difficulties and cause embarrassment for the court would be compelled to so divide the property that instead of being beneficial to the parties it would result in inequality and often lead to future troubles. It will be observed that there is nothing in the civil procedure code or in any other provision which restricts the power to partition to divide the property in specie though wherever it can be conveniently done the court ordinarily would follow the course of dividing the property by metes and bounds and distri - bute the respective shares therein to the parties. But where it cannot be so done there is in my view inherent in the power to partition the power to sell the property and divide it by distributing the sale proceeds thereof in accordance with the respective shares of the parties. Such a course would in such a case be partitioning the property in another form.

(8) As against the view of the calcutta high court two decisions have been pointed out to me which fortify the view i am inclined to take. In subbamma v. Veerayya a. I. R. 1932 mad. 15 venkatasumma rao j. At page 17 of the report observed as follows: -

It is well to bear in mind in this connection that independent of the partition act the court has an inherent power to refuse to divide a property by metes and founds and to adopt such other means as may appear equitable for effecting a just - partition.

The report shows that for these observations the learned judge relied upon an earlier decision of the calcutta high court in basantkumar v. Moti lal (1911) 11 i. C. 370. No doubt this decision does not give reasons for the observations made therein and actually assumes that the court has a power to order sale in a suit for partition. In ramaprasad rao v. Subbaramaiah a. I. R. 1958 a. P. 647 however subba rao c. J. As he then was and ansari j. Examined the earlier decisions of the calcutta allahabad and madras high courts and disagreeing with the decision in nitya gopals case (supra) held that a court in a partition suit had the power to order sale where the property in question could not be conveniently divided by metes and bounds. The learned judges came to this conclusion after analysing not only the earlier decisions but also the provisions of the partition act and observed partition is a legal process by which joint title and possession of co - owners of the entire joint properly is converted into separate title and possession of each of the co - sharers in respect of specific item or items. The joint property is divided in specie and each of the erstwhile joint owners is put in possession of specific extent of property which is allotted to his share. But many contingencies may be visualised when in practice the division by metes and bounds of every item of joint family property is not possible. A joint family or joint owners may be possessed of innumerable items of different extents values quality and nature. In dividing the properties among the various co - owners it may not always be possible to divide every item into distinct shares. A property will have to be allotted to one of the sharers and the other has not be compensated with money. This is technically called owelty sometimes the property to be divided may consist of only one item which cannot conveniently and equitably be divided between the members in which case the court may allot that item to one co - sharer and direct him to pay the value of the share of the other sharer in money. A court may also be confronted with a situation namely that the item of property is not capable of physical partition or is such that if divided it will loss its intrinsic worth in such a case that item is allotted to one and compensation in money value is given to the other and if such a course is not possible it is sold outright and the sale proceeds divided between the joint owners. All the aforesaid and similar other methods are adopted by courts in making an equitable partition of the joint properties either with the consent of the parties or where such consent is not forthcoming in exercise of its own discretion. Whatever method is adopted it is only to implement the process of equitable partition. It would well nigh be impossible for a court to effectuate a partition on an equitable basis if it should be held that it is under a legal obligation to divide every item of the joint property in specie. Where properties are susceptible of such division the court adopts it. Where it is not it adopts one of other of the alternative methods narrated above. Dealing with the partition act and its scope the learned judges observed that that act did not entrench upon the power of the court to effectuate a partition between co - owners in one or the other of the methods suggested above. Before that act was enacted a party had no right to insist upon the court to follow a particular course in the process of partition or to insist upon purchasing the share of the other co - owner under certain circumstances. The act conferred upon a sharer or sharers a right to request the court to sell the property and to insist upon purchasing the formers share at a value fixed by the court. Except to that extent and that provided by the other provisions of the act the power of the court to partition the properties equitably by any of the methods set out above was not in any way affected by the partition act. With respect the view taken by the andhra high court is in my view more satisfactory and commend - able than the view of the calcutta high court which. As i have tried to point out is based on assumptions which again with respect suffer from the infirmities pointed out by me earlier. In my view therefore the trial court finding that in the circumstances set out in the commissioners report it was not possible to conveniently divide the property by metes and bounds had the jurisdiction to direct that the properties be sold by public auction even though ail the parties to the suit were not agreeable to such a course.

(9) Mr. Kaji then argued that if that was the view i was going to accept then the order directing such a sale should be held to be an appealable order for it not only imposed a forced sale on the parties but determined the substantial rights of the parties in the sense that though a party desires to have a share in the property and wants to enjoy the property in specie he is forced to accept a share in the sale proceeds thereof. He pointed out that where a sale is ordered under the partition act such an order is made an appealable order under sec. 8 of that act and therefore an order though not made under that act but is a similar order also determining the rights of the parties must be held to be an appealable order. That reasoning is not correct for under sec. 8 of the partition act an order directing sale had to be made a decree by a deem - ing provision. The legislature must have been conscious that unless such an order was made a deemed decree there would be no appeal from such an order and therefore introduced the legal fiction. Mr. Kaji however relied up on a full bench decision of the madras high court in basavayya v. Guravayya a. I. R 1951 mad. 938 where that high court has held that though a preliminary decree determined the moieties of the respective parties and thereby furnished the basis upon which the division of the property had to be made there would be other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition could be effected. Even after the passing of the preliminary decree it would be open to the court to give appropriate directions regarding all or any of the matters either suo motu or on the application of the parties. The full bench also held that order 20 rule 18 did not prohibit the court from issuing such directions after the preliminary decree had been passed and the mere fact that the preliminary decree did not direct an enquiry into profits subsequent to the date of the suit would not preclude the parties from applying for or the court from awarding such profits by its final decree. Such an enquiry could be order - ed either as part of the preliminary decree or subsequently as a step towards the passing of the final decree and in either case the result of the enquiry had had to be incorporated in the final decree. At page 940 the full bench observed that though ordinarily there would be one preliminary decree and one final decree there was nothing in the civil procedure code which could de construed as a prohibition to the court in an appropriate case passing more than one preliminary decree and one final decree in a suit. For this proposition the court relied upon its own judgment in kasi v. Ramananthan chettier (1947) 2 m. L. J. 523. In a decision of the andhra pradesh high court viswanatha sastri j. In vissanna v. Viswabr - ahmam a. I. R. 1957 a. P. 25 relying upon this decision of the madras high court also held that where after a preliminary decree but before a final decree in a suit for partition of property the court even when there was no application to that effect directed a sale because in its opinion the property was not capable of convenient division and enjoyment in separate shares as that would be an order adjudicating on the substantive rights of the parties with regard to the matters in controversy in the suit and depriving them of a right which normally they were entitled to enforce in a partition it should be regarded as a decree open to an appeal. Mr. Kaji therefore argued that the order in question should be held to be a decree subject to an appeal. He contended that though the impugned order was not in the form of a decree it was in substance and effect a decree and therefore the learned district judge was not right in dismissing the appeal on the ground that such an appeal was not maintainable.

(10) As against these two decisions however mr. Desai for the res - pondents pointed out a decision of a division bench of the bombay high court in vamanacharya v. Govind a. I. R. 1924 bom. 33 where the learned judges held that the drawing up of a decree or the omission to do so must be taken as conclusive on the question whether the court had in fact passed or not passed a preliminary decree and that that was the only proper test to apply in considering whether the provisions of sec. 97 were or were not applicable. They also held that secs. 2 and 96 of the code upon which alone the right of appeal was based must be construed with reference to sec. 33 which made a distinction between a judgment and a decree and order 20 rule 2 which prescribed the contents of a decree. Therefore if no such formal document had been drawn up then no decree could be said to have been passed from which an appeal could be brought under sec. 96 of the code. It must be observed that in vissanna v. Viswabrahmam the order which was held to be an appealable decree was actually drawn up and at page 26 of the report. That fact has been pointedly brought out by viswanatha sastri j. The order in the present case has admittedly not been drown up and therefore it cannot be said that the court had passed a decree within the meaning of sec. 96 of the code. Such an order obviously is also not an order under sec. 47 nor is it an appealable order under order 43 rule i of the code. That being the position it is not possible to say that the learned district judge was wrong in rejecting the appeal on the ground that the impugned order was not an appealable order and that therefore no appeal lay under any of the aforesaid provisions of the code.

(11) But as i have pointed out the petitioners have filed in anticipation of this difficulty the next civil revision application being civil revision application no. 381 of 1962 for setting aside the original order passed by the learned trial judge however the facts in the present case are that according to the report of the commissioner against which no objections were filed by the petitioners at the time when the report was considered by the judge the parties were not agreeable to any course where under the properties could be conveniently divided by metes and bounds. Unfortunately as against two houses there are two godowns and it being impossible to allot a residential house to each one of them or a godown to each one which could be used as a shop the parties were not agree - able to have these properties divided by metes and bounds and therefore the commissioner was compelled to report that by reason of differences of opinion between the parties it was not possible to divide this property conveniently or equitably amongst the parties and that the only course left open to the court was to direct a sale by public auction. Even after hearing the arguments in these two petitions on a request made by the learned advocates of the parties i adjourned them to give a further chance to the parties and to see if even at this stage they were agreeable to have the properties divided by metes and bounds. After a lengthy discussion between the parties the learned advocates had to report to me that it was not possible for the parties to agree to such a course. These being the circumstances in which the commissioner was compelled to make the report the learned judge had no recourse except to accept the report and direct a sale by public auction. In the circumstances existing in this case it is impossible therefore to say that the impugned order was either unreasonable or without jurisdiction or that there was any material irregularity in the order in question.

(12) In the result i would not be justified to interfere with the order in question and the two civil revision applications must fail. Both the revision applications are therefore dismissed. The rules issued therein are discharged. It is agreed that there should be no order as to costs. Applications dismissed