NARAYAN CHANDRA SIL, J. ( 1 ) THIS present revisional application under Article 227 of the Constitution of India was directed against the order dated 6/8/2004 passed by Sri A. K. Mondal, the learned Additional District Judge, Katwa in connection with miscellaneous Appeal No. 2 of 2004 affirming the Order No. 38 dated 17/1/2004 passed in Title Execution Case No. 11 of 1995. ( 2 ) IT appears from the facts stated in the revisional application that smt. Champa Rani Devi, the mother of the opposite parties filed a suit for partition being Title Suit No. 46 of 1990 in the Court of learned Assistant district Judge, Katwa against the petitioner/defendant in respect of the suit property being plot No. 757 under Mouza Dainhat within Katwa Police station. ( 3 ) IN the present revisional application the revisionist has given the facts as to how the property devolved upon different parties. It is stated that the suit property originally belonged to Radhika Prasad Nath, Nasiram nath and Raghu Nath Nath. Radhika died leaving two sons Siba Pada and ram Pada. Nasiram died leaving his son Baidya Nath who is husband of the plaintiff. Raghu Nath died leaving his widow Jnanda Sundari. On 31st july, 1934 Jnanda Sundari purchased 2/3rd shares from Siba Pada Ram pada and Baidya Nath and thus she became the owner of the entire suit property. There was a stipulation rather condition in the agreement at the time of sale that if the heirs of Baidya Nath, Ram Pada and Siba Pada, want to repurchase the property sold to Jnanda Sundari she will reconvey the same to such heirs. Thus, "champa Rani, the plaintiff being the wife of baidya Nath purchased half share of the entire property from Jnanda Sundari on 28. 8. 1995. The entire devolvement of the property by inheritance and also by purchase may be shown in the following table :- radhika (1/3rd) nasiram (1/3rd) raghu Nath (1/3rd) siba Pada Ram Pada (1/3rd) baidya Nath (1/3rd) (husband of the plaintiff) jnanda Sundari (widow) (1/3rd) jnanda Sundari purchased 2/3rd on 31. 07. 34 with some conditions. Thus she became full owner. Champa Rani Purchased 1/2 share (8/annas) on 24. 08. 07. 34 with some conditions. Thus she became full owner. Champa Rani Purchased 1/2 share (8/annas) on 24. 08. 55 thus, the plaintiff requested the defendants to partition of the suit property amicably but the defendants disclose that they got the entire suit property from Jnanda Sundari by a Will which was probated and the Letters of administration had been taken and so the defendants did not agree to the proposal of amicable partition of the suit property given by the plaintiff and as such the suit was filed. ( 4 ) THE defendants contested the suit by filing a written statement and all the material allegations were denied and it is stated inter alia there that Jnanda Sundari being the sixteen annas owner of the suit property executed a will appointing Baidya Nath as an executor of the Will. Baidya nath taking advantage of the confidence reposed by the illiterate lady Jnanda sundari procured her signature on a blank stamp papers which were subsequently converted the same into the sale deed in respect of half share of the suit property in favour of Champa Rani Devi. It was claimed there that Jnanda never sold any portion of the suit property to Champa Rani. It is also stated that Jnanda Sundari executed a second Will in 1961 bequeathing all her properties in favour of the defendants cancelling her first Will after being aware of the mal-practice of Baidya Nath. The defendants took the probate of the second Will of Jnanda Sundari but it was in respect of half share of the suit property due to mistake. It was also alleged there that the plaintiff never got the possession of the suit property and the alleged sale was never acted upon. ( 5 ) IT is further stated in the application for consideration before us that both the sides adduced/produced evidence in that partition suit before the learned trial Court and the learned trial Court after having considered those evidence passed the decree in preliminary form declaring half share of the plaintiff in respect of the suit property. ( 5 ) IT is further stated in the application for consideration before us that both the sides adduced/produced evidence in that partition suit before the learned trial Court and the learned trial Court after having considered those evidence passed the decree in preliminary form declaring half share of the plaintiff in respect of the suit property. Thereafter, the defendants preferred the first appeal being Title Appeal No. 61/11 of 1991 before the learned Additional District Judge, Katwa and ultimately the learned First additional District Judge, Katwa heard and considered the said appeal and was pleased to dismiss the same affirming the judgment and decree passed by the learned trial Court. Thereafter, the defendants preferred a second appeal before this Court being S. A. T. No. 1357 of 1993 which was admitted and subsequently the said second appeal was renumbered as 596 of 1995 which is still pending for disposal before this Court. It is also stated that during the pendency of the said second appeal the pjaintiff applied before the learned trial Court for passing the final decree and ultimately the final decree was also passed on 4. 9. 1995 by the learned trial Court. Thereafter, the plaintiff put that final decree into execution (vide Title Execution Case no. 11 of 1995 ). In the meantime the petitioner filed an application under section 4 of the Partition Act for pre-emption in respect of the other half share of the suit property (vide Miscellaneous Case No. 39 of 2003) which arose out of the Title Execution Case No. 11 of 1995. The opposite parties filed an application for stay of Execution Case No. 11 of 1995 till the disposal of the Miscellaneous Case No. 39 of 2003. The learned executing Court after hearing both the parties had rejected the stay application by order No. 39 dated 17. 1. 2004. Against that order the opposite parties preferred miscellaneous Appeal No. 2 of 2004 before the learned Additional District judge, Katwa who after hearing both the parties was pleased to reject the appeal by his order dated 6. 8. 2004. Against that order the present revisional application has been filed by the petitioner. ( 6 ) THIS revisional application has been contested by the opposite parties by filing caveat and affidavit-in-opposition. 8. 2004. Against that order the present revisional application has been filed by the petitioner. ( 6 ) THIS revisional application has been contested by the opposite parties by filing caveat and affidavit-in-opposition. The maintainability of this revisional application has been challenged as there is no infirmity in the order passed by the learned Additional District Judge nor did he exercise his jurisdiction which was not vested by law upon him ortnat he has failed to exercise jurisdiction so vested. It is admitted that the suit property originally belonged to Radhika, Nasiram and Raghu Nath having 1/3rd share each. In fact, the devolvement of the suit property upon the legal heirs of the three original owners has been admitted in the affidavit-in-opposition. The sale of 2/3rd share to Jnanda Sundari in the year 1934 by Siba Pada, ram Pada and Baidya Nath with some rider as stated in the petition is also admitted. The affidavit-in-opposition has been filed by the son of the plaintiff champa Rani. It is also admitted that Champa Rani purchased half share of the entire property from Jnanda Sundari by a registered deed of sale on 24. 05. 1955 although it is stated in the petition that such purchase was made on 24. 08. 1955. It is also claimed in the affidavit-in-opposition that the partition suit in question was in respect of the residential house which is in fact the suit property. It is again stated that Jnanda Sundari before her death executed a will in favour of the defendaht/judgment-debtor/appellant/ petitioner, Biswa Nath Nath who is her brother's son and by virtue of that will the petitioner has been possessing half portion of the suit property. It is also stated that although the petitioners is the owner of half portion of the suit property he is trying to take possession forcibly in respect of the entire suit property, it is also admitted that the suit was declared finally in 1995 and the execution proceeding of such decree is pending. The petitioner, it is further claimed, is a stranger who is trying to cause delay in the execution of the decree. The petitioner, it is further claimed, is a stranger who is trying to cause delay in the execution of the decree. It is also stated that unless and untill the regular partition by metes and bounds is made and the final decree is passed and the same is engrossed in the stamp papers, there is no question of the co-sharer obtaining the delivery of possession of the uncertain portion of the dwelling house purchased by the stranger purchaser. Or in other words it is further stated, unless there is a final decree and an allotment is made in favour of the co-sharer who has undivided share in the joint property by purchase, the said stranger purchaser cannot become sole and exclusive owner of the unpartitioned portion transfer to him by sale. ( 7 ) MR. Nirmal Kumar De, the learned Advocate for the petitioner/ defendant/judgment-debtor has drawn my attending to the provisions of order XLI Rule 5 of the Code of Civil Procedure wherein it is stated that an appeal shall not operate as a stay of the proceeding under a decree or order appealed from except so far the appellate Court may order, nor shall execute of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate Court may for sufficient cause ordered stay of execution of such decree. In this connection Mr. De has referred to the ratio decided in the case of Ghantesher Ghosh v. Madan mohan Ghosh ( AIR 1997 SC 471 ). In that case the Hon'ble Apex Court has discussed the scope and applicability of Section 4 of the Partition Act. The apex Court has described the provisions of that section as a benevolent provision which is available at all relevant stages of litigation between the contesting co-owners till litigation reaches its terminus by way of full and final discharge and satisfaction of final decree for partition. ( 8 ) MR. Harish Tandon, the learned Advocate appearing for the o. p. / plaintiff/decree-holder submits that in the instant case two things are necessary namely, (1) share in the dwelling house and (2) the share purchased by the strangers. ( 8 ) MR. Harish Tandon, the learned Advocate appearing for the o. p. / plaintiff/decree-holder submits that in the instant case two things are necessary namely, (1) share in the dwelling house and (2) the share purchased by the strangers. Thus, he has drawn my attention to page No. 5 of the petition and tries to impress upon me that brother's son of Jnanda sundari cannot be the member of the family and as such the said brother's son of Jnanda Sundari is not entitled to file pre-emption case under Section 4 of the Partition Act. ( 9 ) IN this connection Mr. Tandon has referred to the ratio decided in the case of Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh, 2002 (6) scc 359 . It was held in that case that Section 4 of the Partition Act deserves a liberal construction because its very object and purpose is to preserve the integrity of the dwelling house. It was further held in that case that for the purpose of application of Section 4 of the Partition Act, a married daughter could not be said to be "a person who is not a member of an undivided family" and accordingly where the suit for partition of the family dwelling house filed by the appellants (two sisters of the respondent) was decreed but the conditions required under Section 4 of the Act were not fulfilled, petition filed by the respondent brother for purchasing the share of his married sister (one of the appellants), it was held that such petition under Section 4 of the Act is liable to be dismissed as premature. The hon'ble Apex Court has also observed that keeping in view of the object and purpose of the Act, appellants were directed to make an offer to the respondent if they decide not to reside the dwelling house in question but they cannot transfer their interest to a stranger. ( 10 ) MR. Tandon has also referred to the ratio decided in the case of anukul Chandra Sadhukhan v. Ajit Kumar Sadhukhan and Ors. , 2004 (2) CHN 160 . In that case the scope of Section 44 of the Transfer of Property Act was discussed along with the scope of Section 4 of the Partition Act. ( 10 ) MR. Tandon has also referred to the ratio decided in the case of anukul Chandra Sadhukhan v. Ajit Kumar Sadhukhan and Ors. , 2004 (2) CHN 160 . In that case the scope of Section 44 of the Transfer of Property Act was discussed along with the scope of Section 4 of the Partition Act. It was decided by the learned Single Judge that the co-sharer plaintiff cannot maintain an application under Section 4 of the Partition Act when the said co-sharer himself sues for partition. ( 11 ) I have considered the submissions of the learned Advocates for the parties. I have also taken note very sincerely of the case laws cited by the learned Advocates for both the parties. In any case I am not going to determine the maintainability of the petition under Section 4 of the Partition act sitting in the revisional Jurisdiction in disposing the revisional application arising out of the order impugned dated 6. 8. 2004 passed by the learned additional District Judge. The provision of Order XLI Rule 5 of Civil procedure Code is candid enough and it indicates that stay of execution of the decree is general cannot be passed and in case it is to be granted sufficient cause of the order must be stated. In such circumstances let us examine the order impugned passed by the learned Additional District Judge, katwa. I am tempted to quote certain relevant portion of the observations of the learned Court below which reads as under:- "it is the settled principle of law that unless and until the regular partition by metes and bounds is held and final decree is passed and the same is engrossed in the stamp papers, there is no question of co-sharer obtaining delivery of possession of the uncertain portion of the dwelling house purchased by the stranger purchaser. Further unless there is a final decree and an allotment is made in favour of the co-sharer who has undivided share in the joint property and who has also purchased the share of the stranger purchaser he cannot become the sole and exclusive owner of the portion transferred to him by sale deed. Further unless there is a final decree and an allotment is made in favour of the co-sharer who has undivided share in the joint property and who has also purchased the share of the stranger purchaser he cannot become the sole and exclusive owner of the portion transferred to him by sale deed. The co-sharer should not be allowed to take delivery of possession of the uncertain share of the undivided dwelling house purchased by a stranger unless there is a regular partition by metes and bounds by passing the decree. In the instant Misc. Appeal no cogent ground is made out either before the learned Court below or before this Court to show how the appellant would be prejudiced if the execution proceeding is going on specially in the event that their petition, in question, under Section 4 of the Partition Act registered as Misc. case would proceed separately and be decided according to its independent merit. Therefore, in my considered view the order of rejection of the petition dated 20. 11. 03 requires no interference by this Court. " thus, it is clear that the observations of the learned Court below are fully inconsistent with the ratio decided in the case of Srilekha Ghosh (Roy) (supra ). Incidentally, it may be mentioned that the ratio decided in the case of Ghantesher ghosh (supra) as referred to by the learned Advocate for the petitioner finds mention in the ratio decided in the case of Srilekha Ghosh (Roy) (supra ). Thus, there appears no jurisdictional error or any i! legality in the order passed by the learned Additional District Judge and as such I do not find any merits of the instant revisional application. ( 12 ) ACCORDINGLY, in view of what has been discussed in the foregoing lines the present revisional application is dismissed and the order passed by the learned Additional District Judge is hereby affirmed. Parties are directed to bear their respective costs. Later- Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates for the parties as expeditiously as possible.