GOVIND SHETTAPPA KAKATKAR Vs. NAGUBAI

JUDGEMENT

(1.) This Revision is by the judgment-debtor in Execution case No. 184/85 on the file of the n Additional Civil Judge, Belgaum. The facts leading to this petition may be stated briefly and they are as follows:' Respondent Smt. Nagubai was awarded 1/3rd share in CTS. No. 1666 of Alwan Galli, Shahpur, Gulbarga. That was in O.S. No. 118/80. A final decree was passed in F.D.P. 33/82 and that final decree was not given effect to and the decree holder was not put in possession of her 1/3rd share. She took out execution. In the Execution Petition, the revision-petitioner (Judgment-debtor) filed LA. III purporting to be one made under Section 151 CP.C, inter-alia stating that he is willing to purchase the share of the decree-holder in the suit-schedule property at the market value which may be fixed by the Court and the decree- holder may, therefore, be directed to sell her 1/3rd share to him. The decree-holder resisted the application by contending that she is a old lady and that she intends to reside in that 1/3rd share as she has no other place to live in and therefore, the application of the judgment debtor may be rejected. The Court, on the rival contentions, formulated the following question for determination:

(2.) In this Court, Mr. R.G. Hegde, learned Counsel for the petitioner strongly contended that the Court is bound to direct to sell the property under Section 2 of the Partition Act if the property cannot conveniently be divided among the co-sharers. At no time was there a case put forward by the judgment debtor that the property in question cannot be divided by metes and bounds conveniently. When that stand was not taken and not pleased, during the final decree proceedings, it will not be open to the petitioner to make that prayer on the execution side.

(3.) In that view of the matter, the executing Court was correct in rejecting I.A. II. The order does not call for interference. This petition is mis-conceived. It is, therefore, rejected but with costs. Advocate's fee is fixed at Rs. 100.00. As the respondent's Advocate is absent, the cost will acrue to the benefit of the respondent-decree-holder only.