Appellants have filed this first appeal (F.A.O. No.375 of 2002) against judgment/order dated 14-5- 2002 passed by learned Civil Judge, 1st Class, Lahore, observing in relief para. 7 that "plaintiff's suit is finally decreed and Mr. Mohsin Abbas, Advocate ...... Is appointed as Court Auctioneer who shall hold the auction of the properties mentioned at Serial Nos. 1 to 7 in the preliminary decree in observed as under:-- "The decree sheet shall be drawn after the auction of the properties accord: to the valuation and the report of auctioneer wherein subsequently the plaintiff shall be directed to tile stamp duty for preparation of the decree sheet---.."
2. Learned counsel for the appellants states that since decree was to be drawn up subsequent to the judgment dated 14-5-2002, therefore, he has filed F.A.O. Against the above said judgment/order, directing sale of the properties. And relying upon judgment of the Honourable Supreme Court of Pakistan in the case of "Mst. Elahi Noor and 4 others v. Muhammad Din" PLD 1977 SC 634, it is contended that Honourable Supreme Court of Pakistan has held that "An order for the sale of property in a partition suit is a decree within the meaning of the Civil Procedure Code". And the learned counsel, thus, states that appeal against order (F.A.O.) was maintainable.
2-A. Serious objections have been raised by the learned counsel for the respondents to the maintainability of the present appeal against order on the ground that appellants have to file an R.
F. A.
3. I have considered the submissions of the learned counsel for the parties as well as the provisions of law. Section 8 of the Partition Act, 1893 meets the present situation by providing as under:-- "Any order for sale made by the Court under sections 2, 3 or 4 shall be deemed to be 9 decree within the Meaning of section 2 of the Code of Civil Procedure, 1908."
3-A. The Honourable Supreme Court of Pakistan in the cases of "Mirza Adam Khan v. Muhammad Sultan" PLD 1975 SC 9 and "Mst. Elahi Noor and 4 others v. Muhammad Din PLD 1977 SC 634, was pleased to settle the question as herein raised by observing that an order for the sale of property in a partition suit is a decree within the meaning of section 2 of the Civil Procedure Code.
3-B. The Honourable Karachi High Court in the case of "Muhammad Saleheen and 9 others v.
Muhammad Siddique Mazhar and 12 others" 1981 CLC 1039, after discussing the provisions contained in sections 3 and 8 of the Partition Act, adjudged that an order for sale made by the Court under section 3 was deemed to be a. Decree and regular first appeal was competent there against.
3-C. The above reproduced provisions of the Partition Act and judgments of the Honourable Courts clearly provide that an order for sale made by the Court was to be deemed to be a decree within meaning of section 2 of Civil Procedure Code, 1908.
4. Natural and logical consequence thereof is that since order of sale of property in a partition suit is deemed to be a decree, therefore, an appeal to challenge the said order shall be a regular appeal as against a decree. I am fortified by the provisions of Rule 11, Order VII read with section 2(2) of the Civil Procedure Code, which provide that an order of rejection of plaint shall be deemed to be a decree under section 2(2) of the Civil Procedure Code, as definition of the decree given therein "shall be deemed to include the rejection of plaint". In the case of "Manzoor Ahmad v. Syed Mushtaq Ahmad and another" PLD 1990 Lahore 390, this Court went to the extent of holding that "In a case of rejection of plaintiff, it is not necessary to file certified copy of the decree alongwith memorandum of appeal directed against such rejection".
5. The effect of provisions of section is that an order of sale made by the Court in suit for partition is deemed to be a decree within the meaning of section 2 of the Civil Procedure Code, wherefore, I am of the opinion that in the present case regular first appeal shall lie from judgment/order dated 14-5-2002 passed by learned Civil Judge, Lahore, directing sale of the property and finally decreeing suit of the petitioner in terms of the said judgment, through postponing the framing' of the decree to finalization of the auction proceedings. Judgment/order dated 14-5-2002 is to be deemed to be decree as per provisions of section 8 of the Partition Act read with section 2(2) of the Civil Procedure Code.
6. Office is, thus, directed to convert petitioners' F.A.O. Into a Regular First Appeal upon completion of necessary formalities and payment of requisite court---fee. After proper conversion of this F.A.O.
Into a Regular First Appeal, the same shall be placed for hearing before an Honourable Division Bench of this Court as per law and procedure.
7. In view of what has been discussed above, interim order dated 1-8-2002 is recalled.