IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 20563 of 2010(O) -------------------------- OS.68/2004 of SUB COURT, PAYYANNUR .................... PETITIONER: --------------- MRS.LATHA AVINASH LIGAM, D/O.LATE I.V.MENOKI, AGED 54 YEARS, RESIDING AT '17/210', RAMAKRISHNA NAGAR, KHAR WEST, MUMBAI-400 052. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENTS: --------------- 1. MRS.RAJALAKSHMI A.NAIR, D/O.LATE I.V.MENOKI, RESIDING AT 'KARTHIKA', PAVANGAD, P.O.PUTHIYANGADI, ELATHUR VILLAGE, KOZHIKODE DISTRICT. 2. MRS.PRASANNA R.NAMBIAR, D/O.LATE I.V.MENOKI, A/33, NALANDA, SECTOR 17, VASHI, NAVI MUMBAI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.20563 of 2010 --------------------------------------- Dated this 05th day of July, 2010 JUDGMENT This revision is in challenge of Ext.P6, order allowing I.A.No.736 of 2010 and direcing auction sale of property on 08-07-2010. Respondent No.1 filed the suit for partition of plaint B schedule and it resulted in Ext.P1, preliminary decree directing division of plaint B schedule into 3 equal shares among petitioner and respondent Nos.1 and 2. Respondent No.1/plaintiff filed I.A.No.1190 of 2006 to pass a final decree to which petitioner filed Ext.P3, objection. An Advocate Commissioner was appointed in the proceeding. Respondent No.1 filed Ext.P4 (I.A.No.736 of 2010), application under Section 151 of the Code of Civil Procedure (for short, “the Code”) to auction one item (which is a flat situated at Bombay) as it could not be divided as stated in the preliminary decree. That application was resisted by petitioner vide Ext.P5, objection. Learned Sub Judge has allowed the application as per Ext.P6, order. Parties were directed to submit upset price for conducting auction sale among them within two weeks from the date of order and the case was posted on 08-07- 2010 for auction. Learned counsel for petitioner contended that W.P.C.No.20563 OF 2010 : 2 : the court below ought not have passed Ext.P6, order before the Advocate Commissioner submitted his report valuing the property. 2. Though petitioner had raised a claim of reservation as regards the flat in question, that plea was not accepted by the trial court, learned counsel for petitioner also states with reference to the preliminary judgment. As such, claim of reservation no more survives for a decision. Then the question is whether property is to be auctioned among sharers. The flat is situated at Bombay and court below observed that physical division of that flat is not possible and that only option is to auction it between the sharers and if that is not possible, by private sale. Objection raised is that the order for auction should have been passed only after Commissioner filed the report assessing the value of the flat. It is not as if when physical division of property becomes impossible or impractical, court is powerless to resort to the most feasible method. In such a circumstance it is well within the power of court to direct auction of the property (See Parangodan @ Thankan Vs. Lekshmikutty and Ors. (1993(2) KLJ 855), Sathi Lakshmanan K.C and Another Vs. Mohandas P C and Ors. (2008(3) ILR Kerala 569) and Rani Aloka Dudhoria and Ors. W.P.C.No.20563 OF 2010 : 3 : Vs. Goutam Dudhoria and Ors. ( 2009(4) Supreme 632). Therefore, court below was not without power in the circumstance of the case to direct auctioning of the property between sharers and, if that if found not possible, by private sale. 3. So far as objection that Commissioner has not valued the property is concerned, I must bear in mind that auction is to be conducted initially among the sharers and impugned order directed parties to file statements to fix upset price. Hence interest of the parties has been protected by the court below by such a direction. Having regard to the factual and legal position stated above, I find little reason to interfere with the order. 4. Learned counsel for petitioner stated that petitioner is staying at Bombay and on account of illness is not able to come down to Kerala for submitting her estimate of price of the flat. Learned counsel states that he has got telephonic information to that affect from petitioner. Learned counsel in the circumstances requested that sale scheduled on 08-07-2010 may be adjourned by two weeks so that petitioner also can submit her estimate of the upset price. I permit petitioner to make such a request in the court below. If the petitioner is not available, it is sufficient that counsel appearing for petitioner filed the application seeking postponement of the sale for the reason stated above. If any such W.P.C.No.20563 OF 2010 : 4 : request is made court below shall consider that request in the circumstances stated and pass appropriate orders so that petitioner's grievance in that regard is redressed. With the above observation the writ petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-