Bishan Narain, J.
1. Harish Chander son of Siri Ram of Palwal obtained a preliminary decree for possession of his half share in the house in suit by partition and for recovery of the mesne profits against his brother Hukam Chand. Proceedings wore taken for partition of the property by metes and bounds, but the local commissioner reported that the property was not partible. On 17-4-1953, the patties agreed to the sale of the suit property and to the distribution of its proceeds between the co-sharers. It was sold for Rs. 4, 300/- and the local commissioner also made a report in respect of the mesne profits.
2. Hukam Chand filed objections to the sale and also objected to the mesne profits awarded by the local commissioner. The Court overruled the objections and passed a final decree for possession, of the entire suit property in favour of the plaintiff and ordered that the defendant shall get Rs. 2,150/-less halt commission of sale as his shares in the suit property. The Court also ordered the defendant to pay a sum of Rs. 280/- as mesne profits.
Hukam Chand filed an appeal in the Court of the Additional District Judge, Gurgaon, on the ground that the mesne profits awarded to the plaintiff should be reduced by Rs. 110/- and also urged that the sate was invalid as it was not proclaimed properly and the purchaser had not deposited the purchase-money within time. The Additional District Judge, however, did not decide the apeal on the merits but ordered on 6-4-1954 that the appeal was against a decree and the appellant must pay 'ad valorem on the value of the property involved in appeal and granted time till 12-5-1954.
As the deficiency in Court-fee was not made good by 12-5-1954 the appeal was rejected on that day. The defendant has come to this Court in second appeal.
3. The appeal was filed before the Additional District Judge, Gurgaon, on a court-fees stamp of Rs. 9-4-. Re. I/- was paid as court-fee on a miscellaneous appeal and court-fee of Rs. 8/4/- was paid as payable on Rs. 110/- being the amount of mesne profits involved in the appeal. As regards the appeal in respect of mesne profits there is no doubt that the Additional District Judge should have heard the appeal as full 'ad valorem' court-fee was paid en the amount involved in appeal, and I am unable to see any reason why the appeal 'qua' the mesna profits should have been dismissed on the ground of the non-payment of court-fee. Nor has any reason been suggested by the learned counsel for the respondent.
4. I must therefore remand the appeal for decision on merits but that will be limited to the defendant's prayer that the amount of mesne profits allowed by the trial Court should be reduced by Rs. 110/-.
5. The next point involved in the appeal if, whether the sale was properly held. The learned counsel for the appellant has urged before me that the defendant does not question the propriety of the order of the sale of the property. His objection is limited to the fact that the particular sale held in the present case was not properly advertised and therefore it is not a sale in accordance with law.
He argues that the sale proceedings under the Partition Act are proceedings in execution. It must, however, be remembered that these proceedings were taken in a suit for partition of joint property after the preliminary decree had been passed. These proceedings therefore are proceedings in the suit. They are not proceedings in execution. If the property bad been partible then it would have been divined by metes and bounds and a final decree would have been passed in due course and it could, not then be urged that the final decree was passed in execution proceedings.
The mere fact that a particular mode of partition was accepted by the parties and the property was sold to give effect to that particular mode of partition will not make the proceedings execution proceedings, They remain proceedings in the suit.
The learned counsel for the appellant invited my attention to Section 7 of the Partition Act which reads:
'Save as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as far as practicable, be adopted, namely:
(a) If the property be sold under a decree or order of the High Court of Calcutta, Madras or Bombay in the exercise of its original jurisdiction, the procedure of such Court in its original civil jurisdiction for the sale of property by the Registrar;
(b) if the property he sold under a decree or order of any other Court, such procedure as the High Court may from time to time by rules prescribed in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees.'
It is clear from this section that the property has to be sold under this Act according to the rules prescribed by the High Court in this behalf and in the absence of such rules according to the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees. It is clear that the Legislature has laid down a procedure for sale of the property under the Act. It does not make the entire sale proceedings to be execution proceedings, nor does it purport to make the proceedings in the suit proceedings in execution.
The intention of the Legislature appears to lay down that if the High Court does not provide a procedure for sale then the Court should follow the procedure laid down in the Code of Civil Procedure in respect of sales in execution of decrees. I am therefore of the opinion that merely because partition was effected by sale of the property under the Partition Act the proceedings do not become proceedings in execution. My attention was invited to a decision by Johnstone J. in -- 'Labhu Ram v. Ram Gopal', AIR 1929 Lah 245 (A), where it was laid down that an order passed on objections preferred against a sale held under Section 7 of the Partition Act was appealabie.
It appears from that judgment that the learned Judge was of the opinion that the order was appealable under Section 47, Civil P. C. There is no discussion on the matter and I fail to see how Section 47 can become applicable in the circumstances of the present case and with great respect to the learned Judge I hold that when objections to the sale are dismissed and a final decree is passed then an appeal lies against the final decree and not against the order dismissing the objections as an order under Section 47, Civil P. C.
That being so the defendant when filing an appeal against the final decree as he in fact did in the present case should have paid 'ad valorem' court-fee on the amount that ho considered was involved in the appeal. He could not treat the appeal as an appeal under Section 47, Civil P. C., and pay a court-fee of Re. I/- only. In the circumstances I hold that the decision of the Additional District Judge is correct that the court-fee on the appeal against the sale was not sufficient. That being so the appeal relating to the objections to the sale must be held not to nave been, filed on proper court-fee and therefore was rightly dismissed by the Additional District Judge.
6. The result is that the appeal relating to the objections to sale is dismissed but the appeal relating to mesne profits is accepted, I therefore remand the appeal to the lower appellate Court for decision of the appeal on the question of mesne profits only in accordance with law. The rest of the appeal stands dismissed. The parties are directed to appear before the lower appellate court on 18-4-1955.