ORDER.— C.R.P. No. 2687 of 1978 is filed against an order made in I.A. No. 1495 of 1974 which was filed for grant of extension of time for depositing the sum of Rs. 20,000 into Court as ordered in LA. No. 214 of 1971 dated 5th March, 1974.

2. C.R.P. No. 2724 of 1978 is filed against the order in LA. No. 1407 of 1974 which was filed by ‘the Official Receiver for directing the plaintiff in the suit to execute a sale of his half share in the suit properties on receiving a sum of Rs. 20,000. Apart from this, I.A. No. 1494 of 1974 was also filed for excusing the delay in filing LA. No. 1495 of 1974. All these three interlocutory applications were heard and disposed of by the Court below by a common order dated 19th June, 1976.

3. In O.S. No, 652 of 1971, the plaintiff, having a half share in the properties, applied for sale of the shares of the defendants by invoking section 3 of the Partition Act and in I.A. No. 214 of 1971 dated 5th March, 1974, the Court directed him to deposit a sum of Rs. 20,000 within a period of three months from the date of that order. The period expired on 5th June, 1974. By that date, he could not deposit the amount as he was undegoing treatment in the hospital at Pondicherry from 10th April, 1974 to 21st May, 1974, and it is thereafter he came to know about the order of the Court and deposited the sum of Rs. 20,000 in the current account of his Advocate in the Lakshmi Vilas Bank Limited, Salem, and has produced the bank receipt to that effect, and it showed that the deposit was made on 5th October, 1.974 (Exhibit A-1 and Exhibit A-2). Therefore he has come forward with an application for extension of time and for excusing the delay in complying with the orders of Court. In the meanwhile, Official Receiver had taken out I.A. No. 1407 of 1974 stating that the creditors, in insolvency proceedings entitled for the other half share, are prepared to deposit Rs. 60,000 and therefore a public sale will be advantageous to the creditors, and that the plaintiff not deposited the amount by 5th June, 1974 cannot ask for extension of time. The Court below held that a delay of about four months in depositing the amount is excusable under the facts and circumstances stated by the plaintiff, and hence granted time for making the deposit. Aggrieved by this order, these two revision petitions have been filed by the Officical Receiver, Salem.

4. Mr. O. V. Balasami, appearing for the petitioners contended that a sale under the Partition Act is also governed by the provisions contained in Order 21, rule 85, Civil Procedure Code, and the time prescribed under the said Rule being mandatory, the non-deposit of the amount within the time provided under the said Rule, will result in the sale itself being declared as a nullity, and that being so, there can be question of the Court below granting extension, of time. The other contention raised by him is that the sale having been already directed under sections 2 and 3 of the Partition Act, sections 6 and 7 of the Act contemplated only a public sale, and therefore when the value of the property had appreciated, the application taken out by the Official Receiver for a public-auction will be in the interests of not only the creditors but also of the other sharer of the property, and hence the Court below ought to have directed a public sale of the properties .

5. On the first point, about the scopes of the sale to be effected under the Partition Act and about the applicability of Order 21, rule 85, Civil Procedure Code, he refers me to the decision of the Supreme Court in M. M. Shah v. Syed1, and also to the provisions of the Partition Act. Section 2 of the Partition Act, 1893, deals with the power of Court to order sale instead for division, in partition suits. If it is made out to the Court that a sale of the property and distribution of the proceeds would be more beneficial to all the shareholders, then the Court may, on the request of any of the shareholders individually or collectivel

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