Judgment :- 1. This appeal arises out of the order passed by the learned Sub Judge, Thiruvannamalai, dated 13.10.1986 allowing the application filed by the plaintiff- petitioner in I.A.No.525 of 1983 in O.S.No.69 of 1976 setting aside the sale held on 7.1.1983 and directing a fresh sale to be effected by the Commissioner appointed for the said purpose. 2. The petitioner’s case is briefly as follows: In the suit filed by the plaintiff for partition and separate possession of his 16/64th share, a preliminary decree has been passed. The second defendant filed an application for passing a final decree. Advocate Thiru P.Sivaraman was appointed as Commissioner to divide the properties. As far as the 18th item of the properties is concerned, the Commissioner has stated in his report that it cannot be divided since it is a sawmill. The second defendant filed an application for selling the property in auction among the sharers and prayed for permission to bid at the auction. The said application was allowed. The second defendant was the highest bidder in respect of the said property for a sum of Rs.1,03,600. The property therefore should not have been brought for public sale subsequently. There was no proper publication of the sale either through tom-tom or publicity in papers. Therefore, the plaintiff-petitioner could not participate in the auction/The sixth respondent was the highest bidder for Rs.95,200. The sale was finalised in his favour. Since the Commissioner demanded a sum of Rs.5,000 as security from the bidders there were no sufficient bidders. When the property had already been sold for Rs.1,03,600 fixing the upset price as Rs.70,000 by the Commissioner is wrong. For all these drawbacks, the sale held on 7.1.1983 is liable to be set aside. 3. The sixth respondent filed a counter stating as follows: The auction was conducted by the Commissioner who was appointed by the Court. He had given notice to the Advocates for the parties prior to the conduct of the sale. Tom-tom was also made in the village. Publication was also made regarding the sale. Only on seeing the same, the sixth respondent participated in the auction. The allegation that the Commissioner has demanded Rs.5,000 as caution deposit is improper and is not correct since it has been made only to enable the actual intending purchaser to participate in the auction. There is no irregularity committed in the auction held on 7.1.1983. Only on seeing the same, the sixth respondent participated in the auction. The allegation that the Commissioner has demanded Rs.5,000 as caution deposit is improper and is not correct since it has been made only to enable the actual intending purchaser to participate in the auction. There is no irregularity committed in the auction held on 7.1.1983. Since the sixth respondent has purchased the property in the auction, to drag on the proceedings, this application is filed and it is liable to be dismissed. 4. On the above pleadings, the learned Sub Judge held an enquiry and has held that the petition is maintainable in the form it was filed, that there was proper publication by torn torn and publication in the papers, that notice was given to the parties to the suit through their counsels, that the description of the property was also specific and clear, that the allegation that the property was sold for a lesser price is not tenable and all these grounds have been decided against the petitioner. But the learned Sub Judge has further held that the auction-purchaser has not paid the necessary amount for writing the sale certificate in stamp papers within 15 days from the date of auction and it is against the provisions of O.21, Rule 85 of the Code of Civil Procedure and on that ground alone, the sale is liable to be set aside and allowed the application as prayed for. 5. Aggrieved over the said order of the learned Sub Judge, the sixth respondent viz., the auction-purchaser has come forward with this appeal. 6. The only question that arises for consideration is therefore, whether the conclusion of the learned Sub Judge, that the sale is liable to be set aside on account of the failure of the auction-purchaser to pay the necessary fees for purchasing stamp papers within 15 days from the auction, is valid or not. 7. Before actually considering the question before us, it is expedient to recollect some facts of this case. The suit is one for partition and separate possession of the plaintiff’s 16/64th share. Subsequent to the passing of the preliminary decree, which has become final, a Commissioner has been appointed by the court to divide the properties. 7. Before actually considering the question before us, it is expedient to recollect some facts of this case. The suit is one for partition and separate possession of the plaintiff’s 16/64th share. Subsequent to the passing of the preliminary decree, which has become final, a Commissioner has been appointed by the court to divide the properties. The Commissioner has found that item No.18 which is a saw mill could not be divided as per the preliminary decree and submitted a report to that effect. On the said report, the second defendant filed an application for directing the Commissioner to auction the property among the parties . he suit and sought permission to bid at the auction. The said application was allowed. Wi. the Commissioner conducted the sale, the second defendant’s bid for Rs.1,03,600 was the highest and it was declared that he was the successful bidder. But the sale has not been concluded in favour of the second defendant since he has failed to deposit the amount. It is only subsequently the property has been brought for public sale. Therefore, the contention of the petitioner that the property should not have been brought for public sale after the second defendant was the successful bidder, has no merits at all. The Commissioner who has been examined as R.W.3 has stated that as per the direction of the Court, he has fixed the sale of the property, and the upset price was also fixed at Rs.70,000 and the sixth respondent was the highest bidder, his bid being Rs.95,200 and that he has paid the entire amount on the same date. The sale was one ordered and conducted as per the Partition Act. The auction-purchaser has not deposited the necessary fee for purchasing the stamp papers. He has therefore filed an application for extension of time in I.A.No.228 of 1983. The learned Sub Judge, Thiruvannamalai, after hearing both sides, has passed an order on 27.10.1983 and has held that rules relating to partition suits under the Partition Act and Civil Rules of Practice do not prescribe any time limit for deposit of sale certificate charges and on that basis, the objection raised by the respondents viz., for extension of time, has to be rejected and allowed the said application. In the said order dated 27.10.1983, the learned Sub Judge has also observed that this question can also be raised in the petition to set aside the sale filed by the respondent. The learned counsel appearing for the respondent would therefore argue that the question whether extension could be granted is left open to be decided in this application and as per O.21, Rule 85 of Civil Procedure Code, there is no jurisdiction to extend the time for deposit of stamp charges and the order of the learned Sub Judge is well-founded and does not call for any interference by this Court. The learned counsel relies upon the decision reported in Suryanarayanamurthi v. Southern Agencies, A.I.R. 1962 A.P. 271, in support of his above contention wherein it has been held that a sale held in execution of a decree is a nullity and has to be set aside when the amounts mentioned in O.21, Rule 85, Civil Procedure Code, are not deposited in full before the court closed on the 15th day from the date of the sale of the property. The learned counsel appearing for the appellant would on the other hand argue that the provisions of O.21 of Civil Procedure Code do not apply to sales under Partition Act and Sec.7 of the Partition Act recognises distinction between the sales under the Partition Act and sales in execution of decrees and that the procedure in respect of the latter is to be adopted only as far as practicable and it would show that when a property is being brought for sale, even under the Partition Act as far as possible the procedure provided under the Civil Rules of Practice has to be considered but it does not mean that it should be followed in the strict sense. The learned counsel relies upon the decision reported in The Official Receiver, Salem v. C.B.Samanthagam Ammal, 1979 T.L.N.J. 354, wherein our High Court has held the Partition Act itself has contemplated stipulation of certain special terms and conditions when sales are effected under the Act and it cannot be contended only the provisions made under O.21, Rules 84, 85 and 86 of Civil Procedure Code will alone be applicable to all types of sales under the Partition Act and that the provisions made under Secs.6 and 7 of the Partition Act and the Rules framed by the High Court go to show that all types of sales effected under the Partition Act cannot be governed by the provisions of the Code of Civil Procedure and yet when the court has granted time for depositing the amount being fully aware of the provisions of O.21, Rule 85 of Civil Procedure Code, because it would not be applicable to the facts and circumstances of the case and the sale held under Secs.2 and 3 of the Partition Act and that in that case, the court has chosen to fix a period of three months and hence it has inherent jurisdiction to extend the time granted by it without being inhibited by O.21, Rule 85, Civil Procedure Code and hence the order made by the court below cannot be held as one made against the provisions of Order 21, Rule 85, Civil Procedure Code. This decision of our High Court makes it clear, that in sales effected in pursuance of the Partition Act, O.21, Rule 85 of Civil Procedure Code cannot be invoked to set aside the sale on the ground that the court has granted time for paying the stamp charges. 8. This decision of our High Court makes it clear, that in sales effected in pursuance of the Partition Act, O.21, Rule 85 of Civil Procedure Code cannot be invoked to set aside the sale on the ground that the court has granted time for paying the stamp charges. 8. The learned counsel appearing for the appellant has also brought to the notice of this Court that as against the order passed by the learned Sub Judge granting extension of time of pay the stamp charges, a revision has been preferred by the plaintiff to the High Court and in the said revision viz., C.R.P.No.393 of 1984, it has been held that the sale in this case has been held only under the provisions of the Partition Act and would therefore be governed by Rule 9 of the Rules framed under the Partition Act and that it will be open to the court to give suitable directions regarding payment of sale certificate charges and that there is no time-limit as such prescribed for payment of these charges and that the court below was quite right in directing the issue of a challan for payment of sale certificate charges and that there is no illegality or irregularity in the order of the court below and dismissed the civil revision petition on 8th September, 1988. The learned counsel appearing for the appellant would argue that when the civil revision petition preferred against the order passed by the learned Sub Judge extending the time for payment of stamp charges has been dismissed, it is not open for the plaintiff- petitioner to contend that an irregularity has been committed in the conduct of the sale by not following O.21, Rule 85, Civil Procedure Code. The civil revision petition is between the appellant and the first respondent in this appeal. The said civil revision petition has been dismissed upholding the order of the learned sub Judge extending the time for payment of stamp charges. The said order passed in the revision is an order parties in this appeal and therefore, I am of opinion that the contention of the respondent supporting the order passed by the learned Sub Judge allowing I.A.No.525 of 1983 before him and setting aside the sale is not a tenable contention. The said order passed in the revision is an order parties in this appeal and therefore, I am of opinion that the contention of the respondent supporting the order passed by the learned Sub Judge allowing I.A.No.525 of 1983 before him and setting aside the sale is not a tenable contention. The order passed by the learned Sub Judge is on an erroneous approach of the provisions of 6.21, Rule 85, Civil Procedure Code without considering that the sale was ordered in a partition suit by the court and therefore, the same is liable to be set aside. In that view, I hold that the conclusion of the learned Sub Judge that the sale is liable to be set aside on account of the failure of the auction-purchaser to pay the necessary fees for purchasing the stamp papers within 15 days from the auction, is not valid. 9. In the result, the appeal is allowed setting aside the order passed by the learned Sub Judge, Thiruvannamalai. No costs.