IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 WP(C).No. 1221 of 2009(U) -------------------------------- O.S.1886/04 OF MUNSIFF COURT, ERNAKULAM ............... PETITIONER: IST DEFENDANT ---------------------------------- K.D. JUSTINE, AGED 45, S/O. DEVASSY, KOLATHARA HOUSE, MARKET ROAD, VADUTHALA, KOCHI-23. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENTS: PLAINTIFF AND DEFENDANTS 2 AND 3 ---------------------------------------------------------------- 1. K.D. ANTONY, AGED 64, S/O. DEVASSY KOLATHARA HOUSE, VADUTHALA CHERANALLUR VILLAGE. 2. K.D. LILA, AGED 52, W/O. JOY THOTTUNGAL THARA NEAR RAILWAY QUARTERS, NETTOOR.P.O, (VIA MARADU) 3. K.D. MABLE, AGED 58, W/O. DEVASSY MALIAKKAL HOUSE NEAR CHURCH, THAIKKODAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.1221 of 2009 ------------------------------------------------ Dated this the 13th day of January, 2009 JUDGMENT The petitioner is the first defendant in O.S.1886/04 on the file of the Munsiff's Court, Ernakulam. Though an appeal is filed by him against the preliminary decree in the said suit, final decree proceedings are in progress as per I.A.816/08 filed by the plaintiff in the suit. 2. It is submitted by the counsel for the petitioner that the suit property is only six cents of land with a small building wherein the petitioner/first defendant is residing and that the court has put up the property for sale to 15/01/09 without giving him an opportunity to purchase the shares of the other sharers who are impleaded as the respondents herein. Counsel contends that the procedure is illegal as the property cannot be W. P. C. No.1221 of 2009 -2- sold without affording opportunity to any of the sharers to purchase the share of the others. Under Section 3 of the Partition Act- 1893, when the court is requested under Section 2 of the Act to direct a sale of the property any other shareholder can apply for leave to buy the share or shares of the other sharers at a valuation of the shares in such a manner as the court thinks fit. It is submitted that no application under Section 3 (1) of the Act has been filed by the petitioner. If the petitioner wants to exercise his right under Section 3 of the Act, he may move appropriate application in the court below positively tomorrow and if such a petition is filed the court shall consider the said application before the proposed sale is conducted, if need be by adjourning the sale. There is no further merit in this Writ Petition and this Writ Petition is disposed of W. P. C. No.1221 of 2009 -3- with the above directions. 3. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-