PACKEER MOHIDEEN ALIAS MEERAKKANI Vs. ABDUL

JUDGEMENT

(1.) THE plaintiff in O.S.No.155 of 1996 on the file of the Principal Sub Court, Tenkasi is the revision petitioner.

(2.) THE facts leading to this revision are: THE revision petitioner, as plaintiff, has filed the suit for partition and separate possession of his 48912/207360 shares in the suit property and obtained a preliminary decree on 4.12.1998, which reached finality. Despite declaration of their shares, the parties have not amicably divided the property by metes and bounds, and therefore, the plaintiff/revision petitioner has filed a petition for passing final decree. THE Advocate-Commissioner, who was appointed to effect physical division of the property, considering the measurements and inconvenience, if it is divided, has submitted his report stating that it is not possible to divide the property as per the shares declared in the preliminary decree and the parties have to work out their remedy under the Partition Act (hereinafter called 'the Act'). THEreafter, the revision petitioner/plaintiff has filed I.A.No.490 of 2001 seeking permission of the Court to bring the property for sale as well as to participate in the sale, applying the provisions of the Act. In that I.A., an Advocate-Commissioner was appointed on 26.11.2002 to conduct the sale of the suit property between the plaintiff/revision petitioner and the defendants. THE Commissioner had conducted the sale, as directed by the Court, on 14.12.2002, by giving notice on 12.12.2002.

(3.) ON the basis of the above pleadings, the parties have urged their case and counter case before the Principal Subordinate Judge, Tenkasi. The learned Subordinate Judge, by going through the provisions of Order 21 Rule 66 CPC and relying upon a decision quoted by the respondents herein, came to the conclusion that the sale was not properly conducted by the Commissioner and therefore, the same should be set aside. Thus taking the view, the sale conducted by the Commissioner on 14.12.2002 was ordered to be set aside by the lower Court, which is sought to be assailed in this revision petition.