RAGI DURGAMBA Vs. SRI LAKSHMINARASIMHASWAMY RICE FACTORY, REPRESENTED BY ITS MANAGING PARTNER RAO BAHADUR TJALAIAH

JUDGEMENT

(1.) THE only point which has been argued in this second appeal relates to the direction of the lower appellate Court that the sale under Section 6 of the Partition Act, 1893, is to be open to the public. It is contended that the right to bid should be limited to the co-sharers and in support of the argument reliance is placed on two decisions. THE first is Debendra Nath Bhattacharjee V/s. Hari Das Bhattacharjee (1910) 15 C.W.N. 552 where there is an observation regarding a sale of the property in that case amongst co-sharers; but it is clear from the context that what the learned Judges had in mirid was a sale under Section 3(2) of the Partition Act. THE decision is not an authority for the view that a sale under Section 6 shall not be open to the public. THE other case is Hari Charan V/s. Fakir Chandra (1936) 40 C.W.N. 955 but this case is not in point as it relates only to the procedure to be followed at a sale under Section 3, Clause (2) of the Act. THE wording of clauses (2) and (3) of Section 6 of the Partition Act clearly contemplates the presence at the sale of bidders other than the shareholders and it is clear that a sale under Section 6 must be public. If the appellant is anxious to purchase what he can of the property without running the risk of public competition, he may proceed under Section 3 of the Act to acquire the shares of the two respondents who have applied for sale. Having done this he may then be in a position to acquire the remaining one-sixth share held by the fifth respondent. THEre is no necessity for any interference with the decree and the appeal is ordered to be dismissed; but as it is obvious that both sides are equally interested in avoiding the risks of open competition, there will be no order as to costs.