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Report No. 86

8.8. Section 7 and sale among co-sharers-Recommendation.-

When a sale is ,ordered under section 2, the procedure to be adopted is (subject to rules) the same as the procedure for execution sales. A sale confined to co-sharers is not permissible-a matter to which1 we have already referred. Some Courts have assumed that such a power exists,2-4 but we think that the Act does not, at present, give such a power.5

At the same time, such a power is required in the interests of justice. In certain special cases-for example, in the case of a family dwelling house to which the co-sharers have an emotional attachment-the Court should have a power to confine the sale to co-sharers. No doubt, in general, a sale by public auction would fetch a higher price than a sale confined to certain parties. But there may be special cases where the monetary aspect may not be the only relevant one, and other over-riding considerations require that only co-sharers should be allowed to offer bids. We therefore recommend that present section 7 should be re-numbered as sub-section (1), and a new sub-section should be inserted in the section to provide for a power of the nature mentioned above.6

1. See supra.

2. Ram Prasad v. Mukandi (Mt.), AIR 1929 All 443, (Banerji & King, JJ).

3. Mohit Krishna v. Pranab Chander, AIR 1930 Cal 616 (619) (S.K. Ghose, J.).

4. Babendra Nath v. Haridas, (1911) 15 CWN 552 (Mookerji, J.).

5. Gadadhar v. Janakinath, AIR 1969 Cal 66 (67), paras. 36-40.

6. For re-draft of section 7, see para. 8.12, infra.



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