C.S. KAMALAKSHI Vs. P.K. BALAKRISHNAN

JUDGEMENT

(1.) This Civil Revision Petition is filed by the petitioner/first plaintiff, against the order dated 07.01.2013 passed by the learned District Judge, Nilgiris at Udagamandalam, in I.A. No. 2 of 2004 in O.S. No. 3 of 2004, in and by which, in the application filed by the revision petitioner/first plaintiff for appointment of Commissioner to divide the suit schedule property as per the preliminary decree and to pass the final decree, Commissioner was appointed to execute the first suggestion of this Court and file report on or before 11.2.2013.

(2.) Learned counsel for the petitioner/first plaintiff contended that the trial Court, without proper application of mind and without giving any opportunity to the petitioner, passed an order directing the Commissioner to make a publication for auctioning of the suit property. The learned counsel further contended that the trial Court has failed to consider the fact that the petitioner and her daughters are not willing to sell the property in public auction. The respondent/defendant is having only 1/12th share and the petitioner and other plaintiffs are having 11/12th share in the suit property. The respondent/defendant is not in the possession of the suit property and therefore, he is not interested for division of the property by metes and bounds according to his respective shares. Therefore, the learned counsel submitted that the impugned order of the trial Court, viz., to execute the first suggestion given by this Court in A.S. No. 573 of 2005, is not at all maintainable and hence, the same may be set aside and the Civil Revision Petition may be allowed. In support of his submissions, learned counsel for the revision petitioner relied on a decision of the Supreme Court reported in : AIR 1978 SC 845 : 1978 (3) SCC 30 (Badri Narain Choudhry v/s. Nil Ratan Sarkar), wherein, the Supreme Court observed as follows:

(3.) Learned counsel for the respondent/defendant submitted that there is no infirmity or illegality in the impugned order passed by the trial Court and therefore, the Civil Revision Petition may be dismissed.