K.R. Venkatrama Gounder and Others vs Rangathai

S. Swamikkannu, J.—It is common ground that two items of properties had been directed to be sold in public auction by the lower Court

and that an objection has been taken at the very initial instance itself that both the houses should not be subjected to public sale, because the

proceeds of the sale of one of the houses could itself satisfy the requirements of the claim. When such is the position, so far as this revision petition

is concerned, it is submitted by Mr. Shyamalam, learned Counsel for the revision petitioner, that Section 2 of the Partition Act (TV of 1893),

which is applicable to the facts of the case, clearly enumerates that the lower Court ought to have applied its mind regarding the distribution of the

proceeds of the sale, maintaining its view regarding the beneficial aspect as far as the shareholders are concerned and in the instant case, the

learned District Munsif, while ordering the petition under Order 26, Rule 13 of the Code of Civil Procedure, has not adverted to this.

On the other hand, Mr. Pandi, learned Counsel for the respondent in this revision refers to the decision reported in Ramaprasada Rao v.

Subbaramaiuh1, and refers to the following observation:

Under the Act, a right is conferred upon the sharer or sharers, if certain conditions are complied with, to request the Court to sell the property and

a correlative right conferred upon a smaller sharer to insist upon purchasingthe former''s share or shares at a value fixed by the Court. Except to

this extent and that provided by the other provisions of the Act, the power of the Court to partition the properties equitably by any of the methods

detailed above or similar others is not, in any way, affected by the provisions of the Act.

He further refers and submits that inasmuch as the Court had applied its mind and directed the sale of the two houses in question, there is

absolutely no ground for this Court to interfere with the order in question under the provisions of Section 115 of the Code of Civil Procedure.

The point for consideration in this revision petition is:

Whether the order in question pronounced by the learned District Munsif directing the sale of the two houses in question, is revisable or not under

the provisions of Section 115, Code of Civil Procedure?

Section 2 of the Partition Act (IV of 1893), reads as follows:

Whenever 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 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 up wards, direct a sale of the property and a distribution of the proceeds.

Each case has to be decided on the facts of that particular case. In the instant case, it is in dispute that the direction has been given by the lower

Court viz., the Court of the District Munsif by way of order in I.A. No. 849 of 1977, dated 1st October, 1980, which runs as follows:

As the Commissioner has suggested who inspected the property to apply for Partition Act, the same Commissioner is directed to sell the B

Schedule property in public auction after publication and deposit sale proceeds into Court and file a report. The Commissioner''s fee of Rs. 100

and initial expenses of Rs, 75 are to be paid by the petitioner direct. Report by 5th December, 1980.

It is relevant to note, it is the above order which is the subject-matter of this revision petition.

It is inter alia argued by Mr. Shyamalam, learned Counsel for the revision petitioner that inasmuch as the sale proceeds of one of the two

houses, which have been now directed to be sold by virtue of the above order under revision can satisfy his claim, the lower Court has not applied

its mind as per the provisions of Section 2 of the Partition Act.

On the other hand, Mr. Piandi, learned Counsel for the respondent would rely only on the ratio deddendi of the decision reported in

Ramaprasada Rao v. Subbammaiah (1957) 2 An. W.R. 488 : AIR 1958 A.P. 647, and submits that the order under revision is not revisable

under the provision of Section 115, because, it is not having any of the infirmities contemplated by Section 115 of the Code of Civil Procedure. It

is relevant to note that the provision of Section 2 of the Partition Act, contemplates application of the mind of the Court to which an application is

made for sale of the properties. It is needless to say that two properties had been directed to be sold by virtue of the above order. There is

absolutely no indication to show that the lower Court had applied its mind, whether the sale of one of the two items of properties alone could

satisfy the claim of the petitioner. Under these circumstances, the order under revision becomes revisable and is hereby revised. The lower ''Court

is directed to consider this aspect of the question raised on behalf of the revision petitioner herein and restore the petition on its file and deal with it

afresh, in accordance with law.

Mr. Shyamalam, learned Counsel for the revision petitioner, also points out that as per the ratio deddendi imbedded in the decision reported in

Muthusamy Gounder Vs. A.P. Kaithamalai Gounder, , unless there is a petition for sale by the plaintiff, who is admittedly having only 1|12 share in

the property, this question can also be gone into by the Court below. This aspect may also be borne in mind by the lower Court while disposing of

the application.

With the above direction, the civil revision petition is allowed and the matter is remanded to the lower Court for fresh disposal according to law

and in the light of the observations contained in this judgment. The lower Court is also directed to dispose of this application within a month from

the date of receipt of the records as this is a matter pending for a long time from the inception of the suit. Under the circumstances, there is no

order as to costs.