IMPORTANT POINTS
Mandatory provisions of the Code cannot be circumvented by resorting to inherent powers of the Court.
Any auction taking place by fraud or collusion is non est in the eyes of law.

JUDGMENT

S.B. Sinha, J.—

Plaintiffs in a suit for partition are appellants before us. The dispute between the parties relates to three items of properties described in Schedules ‘A’, ‘B’ and ‘C’ of the plaint.

2. Shorn of all unnecessary details the fact of the matter is as under :-

Azimganj Raj Estate belonged to Raja Bejoy Singh Dudhoria. He died in 1933. He was survived by two sons namely Kumar Chandra Singh Dudhoria (KCSD) and Kumar Padam Singh Dudhoria (KPSD) who succeeded to his estate. On or about 16.10.1953 a mutual partition was entered into between KCSD and KPSD. Some joint family immovable properties were divided and allotted between them on 50 : 50 basis. It was also agreed that in future also on no account whatsoever there shall be any deviation from this allotment and they would equally share the profit and loss arising out of business.

3. KPSD died on 5.05.1968 and was survived by his widow Rani Aloka Dudhoria and seven daughters, appellants herein except Seema Dudhoria, the original plaintiff No. 6. Respondents are heirs and legal representatives of KCSD.

4. On or about 5.07.1977, a suit for partition was filed by the appellants against KCDS and his sons, which was numbered as C.S. No. 384 of 1977, wherein they admitted equal division of certain immovable properties described in Schedule ‘A’ of the plaint and sought equal division thereof between the parties in respect of properties mentioned in Schedule ‘B of the plaint.

5. On or about 20.07.1979 a preliminary decree was passed in the suit declaring shares in respect of Schedule ‘B’ properties - half : half between the plaintiffs and the defendants.

6. One Shri Nirmal Kumar Mitra, Advocate was appointed as Commissioner of Partition for the purpose of dividing the properties between the parties and determining their respective liabilities (taxes etc) on half and half basis. It was furthermore directed that valuation of the property situated 91, Netaji Subhash Road, Kolkatta be got done by a valuer and then offered to the parties for sale.

7. Several meetings were held by the Commissioner during the period 30.10.1979 and 10.02.1982.

8. In the meantime, however, KCSD, died on 16.12.1980 leaving behind defendants No. 2 to 6 as his heirs and legal representatives.

9. On or about 10.07.1982 an application was filed by the defendants praying inter alia for the following directions to the Commissioner :

“(a) to divide the properties in Schedule C by holding a lottery amongst the parties and thereby allotting two lots accordingly;

(b) for determination of tax and other liabilities.”

10. By a consent order dated 1.09.1982 the said application was allowed, directing:

“By consent of the parties there will be an order in terms of prayer (a) of the petition, except the Commissioner of Partition will sell out through lottery the premises at Jiaganj, where the post office is situated. The commissioner of Partition will divide the properties as mentioned in Schedule ‘C’ into two lots. It is agreed by and between the parties that the division of the properties into two lots first option will be given to the client of Mr. Anindya Mitra to choose the first lot. It is recorded that such properties as mentioned in Schedule ‘C’ have already been divided into two lots by the defendants, which would be submitted to the Commissioner of Partition for the purpose of holding the lottery. Such lottery will be held by the Commissioner of partition within two months and one half from date. Whoever is in possession of the title deed in respect of the properties will submit the same to the Commissioner of partition for the purpose of handing them over to the party concerned. By consent of the parties there will also be an order in terms of prayer (b) of the parties, so far as prayers (d) and (e) of the petition are concerned. Mr. Deb Kumar Sinha, Advocate of M/s Mukherjee & Biswas and Mr. Ananda Agarwalla, Advocate of M/s Rajesh Khaitan & Co. will sell the property situated at Serampore along