IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 RSA.No. 726 of 2010() --------------------- AS.33/2010 of MACT PALA OS.79/2003 of MUNSIFF COURT, PALA .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- K.S.MOHANAN, S/O.SREEDHARAN, KOTTARATHIL, LALAM VILLAGE, KIZHATHADIYOOR KARA, PALA.P.O. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. OMANA, AGED 57 YEARS, W/O.SREEDHARAN, PLAPPALLY HOUSE, ELLUKKAL BHAGAM, ETTUMANOOR VILLAGE. 2. SUBHADRA, AGED 55 YEARS, W/O.VASU, KIZHAKKEKARAYIL VALAYIL, AVELY VILLAGE. 3. RAMANI, AGED 53 YEARS, W/O.SUKUMARAN, VADAKKENARIANIGATTU, KESHAVAMKULAM KARA, PULIYANNOOR VILLAGE. 4. LALITHA, AGED 48, D/O.KALYANI, KOTTARATHIL, LALAM VILLAGE, KIZHATHADIYOOR KARA. 5. SASI, AGED 46, S/O.KALYANI, KOTTARATHIL, LALAM VILLAGE, KIZHATHADIYOOR KARA. 6. SATHI, AGED 38, W/O.BABY ELLUMKALAYIL, LALAM VILLAGE, CHETHIMATTOM KARA. 7. SUSHEELA, AGED 38, D/O.KALYANI, KOTTARATHIL, LALAM VILLAGE, KIZHATHADIYOOR KARA. ADV. SRI.P.C.HARIDAS FOR R1-7 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.No. 726 of 2010() 2 ORDER IN I.A NO.1570 OF 2010 DISMISSED. 02/02/2011 Sd/- S.S.SATHEESACHANDRAN JUDGE P.A TO JUDGE S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.726 OF 2010 -------------------------------- Dated this the 2nd day of February 2011 JUDGMENT The defendant in a suit for partition has filed this appeal challenging the concurrent decision rendered by the two courts below for sale of the suit property. It was found that separation and division of suit property by metes and bounds in view of the limited extent available was not feasible. Suit property has only an extent of 2.452 cents, and under the preliminary decree it was directed to be allotted to eight sharers equally. The preliminary decree itself provided that if a division of the property is not found feasible, sale has to proceed thereof in accordance with the shares allotted to the sharers. In the final decree proceedings, the application moved by the plaintiffs for sale of the property, highlighting the observations made in the preliminary decree and also the area available for partition, the court ordered for sale negativing the objections raised by defendant. As against that order, after having an unsuccessful challenge before the lower appellate court, he has preferred this Second Appeal. R.S.A No.726 OF 2010 - 2 - 2. I heard the counsel on both sides. From the submissions made and perusing the judgments rendered by both the courts, I find no reason to take a different view from that of the court below that it is not practical or feasible to have a division of the property as among the sharers in accordance with the shares fixed, and so much so, sale of the property as a whole has to follow. However, the direction given by the trial court directing the advocate commissioner to conduct the sale over which no advertance is made by the lower appellate court is not proper and correct. In a suit for partition, so far as the conduct of sale, where the circumstance involved in the case demand such a course, necessarily the court has to follow the procedure and guidelines given under Rule 234 of the Civil Rules of Practice. It is noticed that without adverting to those aspects and taking note that the normal rule is conducting of the sale by the court itself in open court and the sale shall be confined with bids only among the co-owners, and the exception is by involving bids from the general public also where the interest of the parties will be better served and in such case alone the appointment of a commissioner can be proceeded with, a blanket order directing the conduct of sale by the commissioner had been ordered, which is not correct. R.S.A No.726 OF 2010 - 3 - Confirming the final decree passed by the court below in the conducting of sale, the trial court is directed to follow the procedure as under Rule 234 of the Civil Rules of Practice. I make it clear that it is open to the trial court to appoint a commissioner in case it finds, the interest of the parties will be better served by inviting bids from the general public, but, definitely a reasoned order for adopting that course is essential. Subject to the observations made above, the appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv