MUTHUSAMY GOUNDER Vs. A.P. KAITHAMALAI GOUNDER

JUDGEMENT

(1.) THE defendant in O.S. No. 515 of 1971 is the plaintiff herein. The respondent herein who is the plaintiff in O.S. No. 515 of 1971 filed in I.A. No. 1236 of 1974 under Order 26, Rules 13 and 14 of the Code of Civil Procedure to appoint a Commissioner to divide the suit property in accordance with the preliminary decree and to pass a final decree. In the affidavit filed in support of the petition, the plaintiff -respondent herein wanted appointment of a Commissioner to divide the suit property which consists of a rice mill and an open space or to sell it in auction. The petitioner herein in the counter -statement filed for I.A. No. 1236 of J974 inter alia contended that the suit property is easily divisible into two equal portions or at least approximately equal portions and as such there is no need to sell the suit property in auction.

(2.) THE trial Court took up for determination as to whether the suit property can be conveniently divided into two equal shares by metes and bounds or whether the entire property has to be sold to the highest bidder and the proceeds divided among the sharers.

(3.) THE lower Court, after taking int6 consideration the Commissioner's report and the objections filed by the respondent herein, directed the Commissioner to sell the property among the sharers after giving one month's notice to the counsels of both the parties and the successful bidder among the sharers shall be permitted to set off his share to the sale price and deposit the balance.