1. A suit for partition of residential building No. 10 Dewan Mandir Street, Jammu by metes and bounds was instituted on 30th Dec.1997 by one Kuldeep Krishan against Shanti Saroop, Jitender Krishan Kapoor, Girish Kapoor and Marish Kapoor. Preliminary decree was passed by the Id trial court on 30th Oct. 1999, providing therein for partition of the suit house by metes and bounds. This preliminary decree was passed on contest of the parlies. 2. During the proceedings of the case, the defendant No. 2 Sh. Jitender Krishan Kapoor, on 29th August 2005 purchased 1/4th share of the original plaintiff, Kuldeep Krishan Kapoor. On an application filed by Sh. Jitender Krishan Kapoor, he was transposed as plaintiff and the original plaintiff, Kuldeep Krishan Kapoor, was allowed to retire from the proceedings. The order was passed on 16th July 2007. One Sh. Puneel Kohli Advocate was appointed as Commissioner to execute the preliminary decree. The commissioner reported that preliminary decree cannot be executed as the suit house can not be partitioned by metes and bounds, same being not practicable. The parties did not agree with the report of the aforementioned commissioner and on consensus Mr. Rakesh Gupta was appointed as Commissioner on 28th March 2011. After his appointment as commissioner Sh. Shanti Saroop defendant died and his legal representatives (LRs): (a) Sudhir Kapoor (b) Pankay Kapoor (c) Sanjay Kapoor, sons and (d) Mrs Lalita Kapoor widow were brought on record in terms of order dated 12th August 2000. 3. The appellant Smt. Upasana Vaidya was impleaded party on 24th Dec. 2002, being one of the legal representative of the deceased Shanti Saroop and was set ex-parte on 10th Nov. 2003. 4. Sh. Rakesh Gupta Architect reported that partition of the suit property by metes and bounds was not practicable. The court on 8.1.2005 directed for putting the suit building to auction. The court directed the parties to nominate the person for conducting the auction of the suit house. The order dated 11.01.2005, where under, parties were given opportunity to nominate a person for auction of the suit house was challenged by Smt. Lalita Kapoor, LR of deceased Shanti Saroop in Civil Revision No. 09/2005. The revision petition was dismissed by this court on 20th May, 2005, on the ground that the impugned order having not decided any rights of the parties, the revision was not competent. The revision petition was dismissed by this court on 20th May, 2005, on the ground that the impugned order having not decided any rights of the parties, the revision was not competent. Thereafter on the consensus of the parties, Nazir of Sadder Court, Jammu, was nominated for conducting the auction of the suit house and the reserve price on the basis of evaluation was fixed at Rs. 71.40 lacs. The Court vide order dated 16th July 2007, reiterated its direction to the Nazir of District Court, Jammu, for conducting the auction of the suit property. This order was called in question by Sanjay Kapoor and Girish Kapoor LRs of deceased Shanti Saroop in Civil Revision No. 156/2009 before this court. The court vide it's order dated 26th Feb. 2010, dismissed the revision on the ground, that predecessor in interest had put in no objection and had even consented for putting the suit property to auction. It is for this reason and for other reasons viz that revision was not maintainable on the ground, that the impugned order did not amount to "case decided" in terms of Section 115 of CPC the revision petition was dismissed. The appellant on 07th July 2010 filed application which was registered as file No. 54/Misc., wherein, she prayed for setting aside the ex-parte proceedings initiated against her on 10th Nov. 2003 and also filed one more application on 7th July 2010, which was registered as file No. 56/Misc. wherein she prayed for recalling of the order dated 08.01.2005 providing for putting suit building to auction. The Id Court, vide its order dated 9th August 2011 ordered for setting aside the ex-parte proceedings initiated against the appellant on 10th Nov. 2003 and it was provided that she cannot file fresh written statement but can participate in the auction of the suit house. The application seeking recalling of the order dated 08.01.2005, was dismissed by the Id court, vide its order dated 9lh August 2011. It is these two orders passed in the separate applications which are called in question by filing one Civil 1st Misc. Appeal (C1MA). 5. In the C1M A notice was issued to respondent No. 1 only by the court on 24th Oct. 2011. On 2nd March 2012, when the matter was considered by the court, Id counsel for the respondents Mr. V. R. Wazir Sr. Appeal (C1MA). 5. In the C1M A notice was issued to respondent No. 1 only by the court on 24th Oct. 2011. On 2nd March 2012, when the matter was considered by the court, Id counsel for the respondents Mr. V. R. Wazir Sr. Advocate raised objection about the maintainability of the appeal. On that dale Id counsel for the appellant sought time to meet the objections raised by Id counsel for respondent No. 1. Mr. R.K. Bruilia Id counsel for the appellant, submitted that the appellant at the lime she was proceeded ex-parte on 10th Nov. 2003, was residing in England and could have not been proceeded ex-parte in absence of providing correct particulars and without effecting service upon her in accordance with the procedure established by law. Ld counsel submitted that since the ex-parte proceedings were initiated without effecting service on the appellant, all orders passed stand vitiated. Ld counsel submitted that, in terms of the impugned order, ex-parte proceedings initiated against the appellant have been set aside, but she has erroneously and illegally been permitted, only to join in the auction proceedings. Ld counsel further submitted that the application seeking recalling of the order dated 08th May 2005, whereunder the court had ordered for putting the suit house to auction has been wrongly and illegally rejected. Ld counsel in order to show that the appeal is maintainable referred to Rule 105 and 106 of Order XXI of CPC and submitted that since the application of the appellant has been rejected, the CIMA is competent under Order XLIII Rule 1 (j-a). Ld counsel also referred to the Jammu and Kashmir Partition Act 1977 (1920 A.D) (for short Act) and submitted that the order passed U/s 2 of the 'Act' is appealable in terms of Section 8 of the 'Act'. Ld counsel also referred to and relied upon the case titled Dr. Kishore Chand Kapoor and ors, appellant v. Dharam Pal Kapoor and ors, respondents reported in AIR 1987 SC 66 ; case titled Badri Narain Prasad Choudhary and ors, Appellants v. Nil Ratan Sarkar,Respondent reported in AIR 1978 SC 845 and case titled Faquira, Appellant v. Srht. Raj Rani and anr, Respondents reported in AIR 1984 Delhi 168. Ld counsel submitted that CIMA for the above stated reasons is maintainable and on merits deserves to be allowed. Mr. V. R. Wazir Id Sr. Raj Rani and anr, Respondents reported in AIR 1984 Delhi 168. Ld counsel submitted that CIMA for the above stated reasons is maintainable and on merits deserves to be allowed. Mr. V. R. Wazir Id Sr. Advocate, submitted that the appeal is not maintainable, on the ground that the 'Act' is not applicable to the case on hand as the suit was not instituted prior to commencement of the 'Act' and also invited the attention of the court to Section 10 of the 'Act' which provides that the 'Act' shall apply to suit instituted before commencement thereof, in which no scheme for the partition of the property has been finally approved by the court. Ld counsel, accordingly, submitted that the appeal is not maintainable. Ld counsel brought to the notice of the court orders passed in Civil Revision No. 156/09 and Civil Revision No. 09/05 and submitted that in view of the judgments passed by the court, the appellant is precluded from raking up the issue in these proceedings. Ld counsel submitted that there being finding recorded by this court in C.R No. 156/09 which revision was filed by two brothers of the present appellant that their predecessor in interest had not raised any objection and had consented for putting the suit house to auction, the issue cannot be reopened in these proceedings. Ld counsel produced xerox copy of the order passed in civil revision Nos. 156/09 and 09/05, which are taken on record. Ld counsel, accordingly, prayed for dismissal of the appeal. 6. Before dealing with the submissions made at Bar, it is deemed appropriate to lake notice of Rule 105 and 106 of Order XXI of CPC and Section 2, 8 and 10 of the 'Act' and Order XLI11 Rule 1 (j-a):- "105. Hearing application. (1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application. (2) Where on the day fixed or on the day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the court may make an order that the application be dismissed. (2) Where on the day fixed or on the day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the court may make an order that the application be dismissed. (3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the court may hear, the application ex-parte and pass such order as it thinks fit. 106. Setting aside orders passed ex parte, etc. (1) the applicant, against whom an order made under sub rule (2) of rule 105 or the opposite party against whom an order is passed ex parte under sub rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the court to set aside the order, and if he satisfies the court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint day for the further hearing of the application. (2) No order shall be made on an application under sub rule (1) unless notice of the application has been served on the other party. (3) An application under sub rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order. Sections 2, 8 and 10 of J&K Partition Act, 1977 (1920 A.D) 2. Power of court to order sale instead of division in partition suits. Sections 2, 8 and 10 of J&K Partition Act, 1977 (1920 A.D) 2. Power of court to order sale instead of division in partition suits. Wherever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have 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 circumstances, 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 shareholders, the court may, if it thinks fit, 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. 8. orders for sale to be deemed decrees. Any order for sale made by the court under section 2,3or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure. 10. Application of Act to pending suits. This Act shall apply to suits instituted before the commencement thereof, in which no scheme for the partition of the property has been finally approved by the court. Order XLIII Rule 1 (a-j) (j-a) an order rejecting an application made under sub rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub rule (1) of rule 105 of that Order is appealable;" 7. The appellant is resident of 8, Newquay Court, Mossley, Congleton, Cheshire, UK, Pin: CW123BQ. Admittedly from the facts which have emerged from the impugned orders and have been taken note of in this judgment, after passing of the preliminary decree for partition of the suit property by metes and bounds, two commissioners reported that the suit property cannot be partitioned by metes and bounds. Orders were passed for putting the suit property to auction and to distribute the sale proceeds thereof amongst the beneficiaries of the preliminary decree. The order of nominating Nazir Sadder court for putting the suit house to auction was challenged by two brothers of the appellant before this court in Civil Revision No. 156/09. Orders were passed for putting the suit property to auction and to distribute the sale proceeds thereof amongst the beneficiaries of the preliminary decree. The order of nominating Nazir Sadder court for putting the suit house to auction was challenged by two brothers of the appellant before this court in Civil Revision No. 156/09. Finding is returned in the order dated 26.02.2010 in the aforementioned civil revision No. 156/09 filed by two brothers of appellant, that their predecessor in interest had recorded no objection and consented for putting the suit property to auction. 8. In the face of such finding recorded by this court in the aforementioned civil revision the appellant who is daughter of late Shanti Saroop Kapoor has no right in law to seek recall of the order dated 08.01.2005, whereunder, the court directed for putting the suit house to auction. The appellant is deriving her interest in respect of the suit property through her predecessor in interest, who having not raised objection on the mode adopted by executing court while ordering to put the suit house to auction, in law has no right to seek recall of the said order. The appellant is, thus, bound by stand taken by her predecessor in interest. Her application seeking recall of the order dated 08.01.2005 is misconceived. Till such time the order dated 26.02.2010, passed in civil revision No. 156/09 remains un-altered, the appellant would have no right to seek recall of the order dated 08.01.2005. The afore-stated finding recorded in civil revision No. 156/09, till such time it is recalled, set aside or modified, would permit the appellant only to participate in the auction of the suit property. The judgments cited at Bar are not applicable to the facts of this case. 9. The objection raised about the maintainability of the appeal by Id counsel for respondents has to be sustained for the following reasons:- (a) Appeal being creature of Statute can be filed only when authorized by the statute. It can be further filed in the manner and on the terms and conditions provided by the Statute. In contradistinction thereto, a civil suit can be filed by any person and will be entertained by the court till such time it is shown that it is barred by any Statute. It can be further filed in the manner and on the terms and conditions provided by the Statute. In contradistinction thereto, a civil suit can be filed by any person and will be entertained by the court till such time it is shown that it is barred by any Statute. Order XLIII Rule 1 (j-a) authorizes for filing of appeal against an order rejecting an application made under sub rule (1) of Rule 106 of Order XXI, provided the order on the original application referred to in sub rule (1) Rule 105 of that order is appealable. The sub rule (1) of Rule 105 of Order XXI provides that court before which application under any forgoing Rules of Order XXI is pending, may fix the date for hearing of the application, and in terms of sub rule (2) the application can be dismissed and in terms of sub rule (3) the court may hear the application in ex-parte and pass such orders as it may thinks fit. Seeking recall of the order providing for putting to auction the suit property, apparently is not covered by any of the rules of order XXI, in respect of preliminary decree passed in a suit for partition. The application filed by the appellant, seeking recall of the order dated 08.01.2005 is not, thus, covered by any of the Rules of Order XXI, neither the application can be said tobe filed under rule 106. The order is, thus, held to be not appealable. This CIMA is otherwise not maintainable, in as much as two independent orders passed by executing court have been called in question in one CIMA. Such course cannot be permitted to be adopted in law. (b) Without returning a finding on the applicability or non applicability of the ] &K Partition Act 1977 in respect of proceedings pending before the trial court, assume for sake of arguments that an appeal in terms of Section 8 of the 'Act', is competent, but present CIMA is not maintainable as in terms of the 'Act' appeal was to be filed under section 8 read with Section 96 of CPC, which has not been done. For the above stated reasons, this appeal is dismissed. In view of the peculiar circumstances of the case the parties to bear own costs.