Prera Chand Pandit, J. - (1.) CHARANJI Lal Jaipuri filed a suit against Hardwari Lal and others for partition of certain properties, including the property in dispute namely Jaipuria Spinning and Weaving Mills, Delhi, and rendition of accounts. One. of the issues in this case was whether the property in dispute was impartible or not. During the pendency of this suit, on 19th September, 1960, the Plaintiff filed an application under Section 2 of the Indian Partition Act (4 of 1893)(hereinafter referred to as the Act), on which it was stated that the Defendants had raised an objection that the property in dispute was impartible. The objection was frivolous, but in case the Court held against him, this property be sold by public auction, which would be in the interests of all concerned. In answer to this application, only Hardwari Lal, Defendant No. 1, put in his reply on 26th September, 1960, saying that the property in dispute was impartible and it would be more beneficial for all the shareholders, if the court directed a sale of the same and distribution of the proceeds in accordance with the Act. It was, however, mentioned that the Plaintiff, who was claiming only a very small share, namely 74 per cent, in this property, could not dictate the sale. It Was, therefore, prayed that orders in accordance with the Partition Act - -Section 2 may be passed, if so desired by the Plaintiff. While deciding this suit on 1st December, 1960, the trial Court came to the following conclusion: - - Para 31. When such is the case, the Court is empowered to act under Section 2 of the Partition Act on the application of any of the shareholders. In the present case, an application has been made by the Plaintiff himself and Defendant No. 1 who is the major shareholder, has not only agreed to it, but also pleaded that it would be beneficial if this property is sold by public auction under the provisions of the Partition Act. In these circumstances, I decide this issue in favour of the Defendants and further hold that it is a fit case, in which this property should be sold by auction under the provisions of the Partition Act. Para 33. In regard to the sale of Jaipuria Spinning and Weaving Mills, Subzimandi, Delhi, it is necessary for the Court to fix a reserve price of the property under Section 6 of the Partition Act. This can be done only after the parties file their respective estimates of its value. They should do so on 15th December, 1960.
(2.) A preliminary decree was then passed in which the shares of the various owners were mentioned and a Local Commissioner was appointed to take the accounts of the income of the property in dispute. The estimate of the reserve price of this property as given by the Plaintiff was Rs. 45 lacs, while according to one of the Defendants it was Rs. 50 lacs. On 15th December, 1960, Hardwari Lal and his mother, Smt. Muni Devi, Defendant No. 3, filed an application under Section 3 of the Act and Section 151, Code of Civil Procedure, to the effect; that the Applicants were prepared to purchase the share of the Plaintiff at a valuation that might be fixed under the provisions of Section 3 of the Act. Under these circumstances, it was just and Se proper that the Plaintiff's share might be ordered : to be sold to the highest bidder from amongst the H shareholders under the provisions of Section 3(2) of the Act. A prayer was, therefore, made that orders for the sale of the Plaintiff's share under Section 3 be passed and the bids be confined to the shareholders alone.
(3.) THIS application was opposed by the Plaintiff, who submitted that the same was legally not maintainable. By order, dated 1st December, 1960, the Court had held that this property would be sold by public auction. This order had been passed on the Plaintiff's application under Section 2 of the Act and Defendant No. 1 did not raise any objection at that stage that it should not be so sold. The Defendant's application was mala fide and the Plaintiff would be greatly prejudiced, in case the property was not sold by public auction. It was also mentioned that the Plaintiff was a poor man and was unable to purchase the Mills. After the passing of the judgment and the preliminary decree, such an application did not lie.;