H. N. NAGAMOHAN DAS, J.

( 1 ) IN this appeal the appellants have called in question the order dated 1-4-2006 in FDP No. 10007/ 1994 passed by the Addl. City Civil Judge, mayohall, Bangalore City.

( 2 ) THE subject-matter of the litigation is property bearing No. 155/b situated in the compound of premises No. 1 Wheeler Road, civil Station, Bangalore measuring in all 5600 sq. ft. (for short 'the schedule property' ). The appellants and respondents are relatives except respondent No. 23. The family tree is as under :

( 3 ) THE appellants in this appeal are the children of defendant No. 5 and respondents are the plaintiffs and other defendants before the trial Court and respondent No. 23 is the auction purchaser. In this judgment the parties are referred to their status before the trial court.

( 4 ) PLAINTIFFS filed O. S. No. 245/1980 later numbered as O. S. No. 8471/1980

against the defendants for partition and separate possession of their 3/8th share in the schedule property. The trial Court decreed O. S. No. 8471/ 80 vide judgment dated 31-7-1993 declaring that the plaintiffs together are entitled for 3/7th share in the entire schedule property. The defendants being aggrieved by the judgment and Decree of the Trial Court filed RFA No. 381/1993 on the file of this Court. This Court vide judgment dated 4-7-1995 partly allowed the appeal holding that G. V. Balakrishna and his second wife Nagamma are the co-owners having one half share in the schedule property. It is further held that the plaintiffs are entitled for 3/7th share in one half of the property of g. V. Balakrishna and not the entire property. The operative portion reads as under :

"having regard to the aforesaid position the appeal partially succeeds. The decree passed by the learned trial Judge is modified to the extent that while the apportionment of 3/7th share to the plaintiffs is upheld, it is in respect of one-half of the property of deceased balakrishna and not the entire property. Subject to this modification, the rest of the decree stands confirmed. The appeal accordingly stands disposed of. In the circumstances of the case, there shall be no order as to cost. "

( 5 ) SUBSEQUENT to the preliminary decreein o. S. No. 8471/80, the plaintiffs filed FDP No. 10007/94 to draw the final decree proceedings and the same was pending on the file of city Civil Court (CH 20 ). The further proceedings in this FDP No. 10007/94 were stayed during the pendency of RFA No. 381/93. Subsequent to disposal of RFA 381/93, defendant No. 2 filed FDP No. 60/97 to draw the final decree proceedings and to put him in separate possession of his share in the schedule property. As per notification bearing No. 41/2005 dated 14-6-2005 FDP No. 10007/94 and FDP No. 60/1997 were transferred. to City civil Court, Court Hall No. 20.

( 6 ) IN FDP No. 60/97 a Court Commissioner was appointed on 30-11-2000. The Court commissioner submitted a report on 30-8-2001 stating that it is not feasible to divide the schedule property in terms of the modified decree in rfa 381/93. Some of the defendants filed objections to the Commissioner report opposing the same and also opposed for sale of schedule property. The legal representatives of defendant No. 5 filed their claim statement and opposed the sale of schedule property.

( 7 ) WHEN the matter stood at that stage the plaintiffs filed an application under Section 2 of the Partition Act on 1-4-2006 for sale of schedule property in a public auction and to distribute the sale proceeds on pro rata basis. On that day all the defendants except the legal representatives of defendant No. 5 submitted that they have no objection for allowing the plaintiffs application. On 1-4-2006 the legal representatives of defendant No. 5 and their advocate were not present before the trial Court. The Trial Court allowed the application of plaintiffs and appointed a Court commissioner to sell the schedule property in public auction and to divide the sale proceeds. Accordingly, the

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