P.S. Dinesh Kumar, J.

Petitioners, in this writ petition, are challenging the order dated 20-2-2016 allowing I.A. No. 6 filed by respondents 1 to 4 in FDP No. 10 of 2012.

2. Heard Sri K.A. Ariga for Sri K.S. Ranjith, learned Counsel for the petitioners and Sri Vigneshwara S. Shastri, learned Counsel for respondents 1 to 4.

3. Respondents 1 to 4 brought a suit, O.S. No. 5 of 2010 for partition and separate possession of their 70/432 share in 'A' and 'B' Schedule properties. It was decreed and a preliminary decree was drawn. Respondents 1 to 4 were granted 20/144th share in suit Schedule 'A' property. Petitioner 1 was granted 40/144th share, respondents 5 to 7 were granted 12/144th share each and petitioner 2 and respondent 8 were granted 24/144th share each in 'A' Schedule property.

4. Respondents 1 to 4 filed FDP No. 10 of 2012 and sought for appointment of a Court Commissioner to partition the 'A' Schedule property into 432 equal shares and to deliver 70 shares to them. An Advocate by name Sri Prakash Chandra Shetty Giliyaru was appointed as a Court Commissioner. He submitted a report taking assistance of a qualified Civil Engineer. Second petitioner herein raised certain technical objections. Parties agreed to purchase different items in 'A' Schedule property as per their convenience. First petitioner offered to purchase the said item 5. Parties also agreed that the sale proceeds as per agreed valuation should be deposited before the Court immediately after submission of report by the Court Commissioner. Purchasers of items 1 to 4 were ready to deposit the value of property which they had agreed to purchase at that stage. Second respondent filed an objection stating that value fixed for item 5 is on the higher side.

5. First respondent filed the instant I.A. No. 6 under Section 3 of the Partition Act, 1893 ('Act' for short) read with Section 151 of Civil Procedure Code, 1908 and prayed that 'A' Schedule properties be sold by public auction either in one lot or separately for the highest market value and proceeds thereof be deposited before the Court for distribution among the shareholders.

6. It is contended in the affidavit filed by the first respondent in support of I.A. No. 6 that the second petitioner is coming in the way of resolving the matter amicably by raising objections with regard to valuation. All parties had agreed and fixed the value of item 5 at Rs. 4.5 lakhs per cent. Second petitioner expressed his desire to purchase item 5 voluntarily. Accordingly, Commissioner prepared a mahazar, and the same was signed by the second petitioner also.

7. In sum and substance, case of the first respondent-applicant is that the second petitioner had agreed to purchase item 5 in 'A' Schedule property at the rate of Rs. 4.5 lakhs per cent and subsequently went back on his offer. Thus, he is making attempts to prolong the FDP proceedings. With these averments, first respondent prayed before the Court below to order for a public auction. Second petitioner opposed I.A. No. 6. On consideration of the material on record, Court below has allowed the said I.A. and permitted public auction of 'A' Schedule property by fixing the upset price at Rs. 4.5 lakhs per cent in respect of item 5.

8. Assailing the correctness of the impugned order, Sri K.A. Ariga, learned Counsel for the petitioners submitted that Sections 2 and 3 of the Act are not applicable to the facts of this case. Section 2 of the Act can be pressed into service in special circumstances only where the division of the property cannot be reasonably and conveniently made. In the instance case, it is clear from the Commissioner's report that all the properties are divisible. Therefore, the impugned order is contrary to law.

It is next argued by him that even if it is assumed that Section 2 of the Act could have been invoked, yet the impugned order is unsustainable because the procedure laid down in Section 3 has not been complied with. Thus, the impugned order is bad in law and l