The court has the power to direct the sale of property involved in a suit for partition and the distribution of the sale proceeds among the sharers, and the sale should be conducted in open court as per Rule 234 of the Civil Rules of Practice.

The short point that arises for consideration in this Civil Revision is whether the court can direct a sale of the property involved in a partition suit and distribution of the proceeds even in a case where a request is not made by a shareholder or shareholders interested individually or collectively to the extent of one moiety or upwards and whether such a sale should be conducted in open court. The plaintiff is the revision petitioner in this Civil Revision Petition. The challenge is against the order of the Munsiff's Court, Palghat dismissing an application for a review of an order refusing to give a direction to the commissioner appointed in a final decree proceedings in a suit for partition, to stop the sale. The commissioner appointed in the final decree proceedings reported to the court that the decree schedule properties can only be sold and the sale proceeds distributed among the sharers and that was allowed by the court. Accordingly, the commissioner fixed a date for selling the properties by auction among the sharers. It was then that the petitioner-plaintiff put in a petition to stay the auction sale. On the court rejecting that petition, the petitioner filed an application for review of the order which was dismissed by the order impugned in this Civil Revision.

2. S.2 of the Partition Act, 1893 reads:

"2. Power to Court to order sale instead of division in partition suits. - Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of shareholders therein, or of any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds."

Rule 234 of the Civil Rules of Practice, Kerala, reads:

"234. Order for sale. - (1) When it is ordered in a partition suit that any property may be sold and proceeds divided, persons other than the co-owners shall not be permitted to bid in the sale, unless it appears to the Court that it is just and expedient to order otherwise.

(2) The sale when the bid is not open to strangers shall be sold in open court on a day to which the case is adjourned for the purpose. The highest bid shall be accepted and the sale confirmed at once unless the sale is adjourned to some other date

(3)

(4)

(5) Where the Court considers that the interests of the parties will be better served by ordering a sale, open for the bid of the general public, the Court may appoint an auc-tioner and shall fix the remuneration for the purpose and may give the necessary direction relating to the place, time and manner of publication and conduct the sale and shall direct any of the parties to deposit in Court any sum required for the publication and conduct of the sale"

As per S.2 of the Partition Act, 1893, a sale of the properties involed in a partition suit and distribution of the sale proceeds among the sharers can be made only on the request of a shareholder individually interested or of shareholders collectively interested in one moiety or upwards of the properties involved. But, it cannot be said that the Court has no power to direct the sale of the property involved in a suit for partition and the distribution of the sale proceeds among the sharers even if the above condition insisted by S.2 of the Partition Act is not satisfied. What the court has to see is that there is a just partition. In all cases where the property, or properties, is incapable of partition by metes and bounds, the Court is not without powers to resort to a feasible method just and equi