The court has inherent power to direct sale of the property in a partition suit apart from the provisions of the INDIAN PARTITION ACT, 1893, in cases where the court feels that the payment of compensation by the other rich co-sharers at a valuation to be fixed by the court is not in consonance with justice.

( 1 ) THE short point to be decided in this application is whether in a partition suit the court can direct sale of the property apart from the provisions of the Indian INDIAN PARTITION ACT, 1893, 1893. the facts of the case may be stated briefly as follows: -

( 2 ) ON 12th September 1957, one Phatik Bhattacharyya instituted the present suit against his co-sharers, Phelu Bhattacharyya and Mritunjoy Bhattacharyya for partition of the only joint family property being premises No. 43/1, Amherst Street, Calcutta. On 11th June, 1959, Phelu Bhattacharyya died leaving respondents Nos. 1 to 4 whose names have been duly substituted in the present proceedings. On 1st of December 1956, a preliminary decree was passed declaring Phatik Chandra Bhattacahryya, Mritunjoy Bhattacharyya and heirs of Phelu Bhattacharyya as owners of 1/3rd share each. The Registrar of this Hon'ble Court was appointed the Commissioner of Partition. On 16th of May 1963, the Registrar submitted his report stating that the property could not be divided into three parts and also asked the parties to take directions from the court. On 20th June 1963, Mritunjoy Bhattacharyya died. In the same year the Registrar also retired and Mr. S. K. Banerjee became the Registrar and Commissioner of Partition. ON 6th of March 1966, Phatick Chandra Bhattacharyya and Mritunjoy Bhattacharyya were duly recorded. Thereafter, on 1st of July 1967, the present application was made by the heirs of Phatik Bhattacharyya for an order directing the sale of the said premises No. 43/1, Amherst Street, Calcutta, by public auction to the highest bidder or by private treaty as he may think fit subject to a reserved price to be fixed by Mr. K. C. Pal, the Surveyor appointed therein in the manner and under the conditions in which sales have been conducted by the Commissioner of Partition in a partition suit. They also wanted an order that the parties might be given leave to bid at the sale.

( 3 ) ADMITTEDLY, the present petitioners are only owners of 1/3rd share in the property and, as such, the application cannot be described as an application under Section 2 of the INDIAN PARTITION ACT, 1893. Mr. C. Dutt, learned Counsel for the plaintiff, has urged that his client is asking for the sale of the property by public auction as such sale would bring higher value and benefit to his client. Mr. N. K. Roychowdhury, learned Counsel for the respondents, has contended that this court has no jurisdiction to pass such an order. According to him, his clients are owners of 2/3rd share and are in possession of the property and the only effective way to partition the properties is to pay 1/3rd price to them by way of compensation at a valuation to be fixed by this Court.

( 4 ) IT is now for me to examine whether this court has got an inherent power to direct sale by public auction apart from the INDIAN PARTITION ACT, 1893. Recently the Appeal Bench of this Hon'ble Court has delivered a judgment in (1) Gadadhar Ghose v; Janaki Nath Ghose, 72, CWN 299, where the learned Judges have come to the conclusion that a sale under Section 2 of the INDIAN PARTITION ACT, 1893 must be a public sale and cannot be limited to a sale among the co-sharers only. Mr. Roychowhdury relied on some observations in the judgment in the same case where the learned Judges in separate judgments have made some observations to the effect that the court has no inherent power to direct the sale of the property in a Partition suit except under the provisions of the INDIAN PARTITION ACT, 1893. Mr. Dutt, on the other hand, has stated that the said observations are only obiter dicta and are not binding on me. In my view, the facts of the said appeal are clearly distinguishable from the facts of the present case. There the parties wanted an order on an application under Section 2 of the INDIAN PARTITION ACT, 1893 and Ray, J. has made the following observations at page 300. ?the appeal raises an important question. The question is whethe