1. This appeal arises out of a suit for partition. The plaintiff claimed 41 sihams out of 96 sihams as purchaser from certain persons who are alleged to have been the owners of this share. The Court of first instance made a preliminary decree on the 19th September, 1906 to the effect that the claim of the plaintiff for partition and separate possession of 36 sihams out of 96 sihams be decreed. The Court also gave certain other directions relating to the property. It then appointed a Commissioner to effect a partition with a view to a final decree being passed. It appears that the husband of the plaintiff resisted the Commissioner and objected to his preparing a plan for purposes of partition. The Commissioner thereupon returned the Commission with his report. When the case came on for bearing the plaintiff's pleader asked that the Commission might be issued again. This the Court refused to do and on the 31st October, 1903, the learned Munsif passed a decree dismissing the suit with costs.
2. From this decree the plaintiff preferred an appeal to the learned District Judge, but the appeal was dismissed. A second appeal to this Court was also dismissed. This appeal has been preferred under the Letters Patent from the judgment of the learned Judge of this Court.
3. We are of opinion that this appeal must prevail. As we have stated above, the Munsif made a decree on the 19th September, 1906, He ought to have carried out that decree and with that view, he should in accordance with the provisions of Section 396 of Act XIV of 1882, have issued a Commission, made a decree after considering the report of the Commissioner. The circumstances of the plaintiff or her agent having resisted the Commission was not sufficient to justify the dismissal of the suit in its entirety. The Court ought to have acceded to the request of the plaintiff's pleader to re-issue the Commission and to have seen that the order was obeyed. As the Court had passed a preliminary decree, decreeing a part of the claim, it had no authority to nullify that decree, by totally dismissing the suit. We allow the appeal, discharge the decrees of this Court, of the lower appellate Court and of the Court of first instance and send the case back to the Court of first instance with directions to carry out the decree of September, 1906. Costs here and hitherto will follow the event.