SANTHOSH KUMAR Vs. INDIRA MOHANDAS

JUDGEMENT

(1.) The common order in I.A. Nos. 1543 and 6092 of 2000 in I.A. 1240 of 1993 in O. S. 165 of 1987 on the file of the Subordinate Judge's Court, Thrissur is under challenge in this revision petition.

(2.) The above suit was filed by the plaintiffs for partition and separate possession of two items of plaint schedule properties. A preliminary decree for partition was passed by the Trial Court directing partition of item 1 into three shares and item 2 into five shares. The plaintiff filed I.A. 1240 of 1993 to pass final decree in terms of the preliminary decree. The lower court issued a commission to effect actual division of properties in accordance with the preliminary decree. The Commissioner filed report before the court stating that plaint schedule item 2 which is of an extent of 6 and 38/100 cents with residential building is not feasible for actual division and suggesting sale of that item of property among the sharers. The court permitted sale of that item of property by auction among the sharers. The Commissioner conducted the sale and the sale was confirmed in favour of the second defendant for Rs. 7,00,000/- being the highest bidder. Accordingly he deposited Rs. 5,60,000/- towards the sale price after deducting his one fifth share out of the bid amount on 21.1.2000. Subsequently, he filed I.A. 1543 of 2000 for delivery of possession of item 2 of the plaint schedule properties and I.A. 1692 of 2000 to permit him to deposit the non judicial stamps for executing the sale deed in his favour in respect of item 2 of the plaint schedule properties. The lower court held that R.234(3) of the Civil Rules of Practice in Kerala is applicable to the facts of this case and a final decree in respect of all the properties covered by the preliminary decree alone can be passed and hence the prayer made by the petitioner in the above two applications cannot be granted. Accordingly both the applications were dismissed. Hence the second defendant / petitioner has preferred this revision before this Court.

(3.) The counsel for the revision petitioner submitted that R.234(3) of the Civil Rules of Practice has no application to the facts of this case, since the sale is not under the provisions of Partition Act. But the respondents have contended that Chap.6 of the Civil Rules of Practice which takes in R.234 also applies to sale in all suits for partition and not only to the sale under the provisions of the partition Act and therefore the lower appellate court is justified in disallowing the claim made by the petitioner to pass a partial final decree in respect of item 2 of the plaint schedule properties and deliver the property to the petitioner.