K RAGHAVENDRA RAO Vs. K SRINIVASA RAO

JUDGEMENT

(1.) this matter arises out of the order dt. 12-1-1988 made on I.A. 1 in F.D.P. 16 of 1986 (in O.S. 119 of 1983) on the file of the Principal Civil Judge, Managalore. I.A. 1 was filed by respondent in the lower Court inter alia seeking an order that the property in question may be sold to the plaintiff after determining its value. The Court, instead of granting relief as prayed for by the Revision-Petitioner in his application I.A. 1, proceeded to direct sale by public auction by appointing a Commissioner and it further granted permission to petitioner-plaintiff (though the order reads 'respondent-1' which apparently is an error) to bid at the auction. Therefore, the present revision is preferred inter alia contending that there is no proper disposal of I.A. 1 and the Court has acted contrary to the provisions of Ss.2 and 3 of the Partition Act.

(2.) The facts themselves are not in dispute, except, Mr. Janardhan, learned Senior Counsel appearing for some of the respondents, has strenuously contended that the plaintiff is adopting delaying tactics to deprive one of the sharers who is almost on her death-bed to have the fruits of the decree. It is unfortunate that it is so. But our justice dispensation system is highly procedure oriented and delays were inherent in such a system and may not be avoided in every case. In fact, there is no guarantee that in any other system, justice is more efficacious or speedier. Therefore, the Courts undoubtedly will endeavour to give speedy disposal if there is co-operation from all parties including counsel appearing for parties.

(3.) Section 2 of the Partition Act reads as follows : - 2. Power to Court to order sale instead of division in partition suits. - 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 share-holders therein, or of any other special circumstance, 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 things fit, on the request of such share-holders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds." From the above, it is clear that Court may direct sale of immovable property when it is found that it is not possible equitably to divide the property in question by metes and bounds amongst all the sharers. It is also implicit that the parties in that circumstance may move the Court for sale. As observed by the Supreme Court in the case of R. Ramamurthi Aiyar (Dead) By L.R.S. v. Raja V. Rajeswara Rao, AIR 1973 SC 643, the application could not be mandatory. Even the satisfaction of the Court without an application would give justification to provide the solution in case property is not equitably divisible by metes and bounds. But once the Court comes to the conclusion that the property may be sold on the application of one of the parties, as in the instant case, then the Court must follow the procedure laid down in the Act. That procedure is to be found in S.3 of the Act which reads as follows :-