Bombay High Court
Girish S/O Ramshankar Upadhyay And ... vs Sharad S/O Ramshankar Upadhyay And ... on 21 January, 2022
Author: S.M. Modak
Bench: S. M. Modak
::1:: SA.147__148.2021._Judgment--.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO.147 OF 2021
APPELLANTS:- 1. Girish s/o Ramshankar Upadyay,
(Org. Judgment debtor) Aged about 70 years, Occ. Business.
On R.A.
2. Chirag s/o Girish Upadyay,
Aged about 38 years, Occ. Business,
Both R/o Pitruchayya, Upadhyay Niwas,
Near Chirag Bekery, Wardha-Nagpur
Road, Wardha, Tah. & Dist. Wardha.
... VERSUS ...
RESPONDENTS:- 1. Sharad s/o Ramshankar Upadhyay,
On R.A. Aged about 72 years, Occu. Business,
R/o Upadhyay Chawl, Gaurakshan
Ward, Wardha, Tah. & Dist. Wardha.
2. Jatin s/o Sharad Upadhyay (Deceased)
through his legal heirs.
2-a. Smt. Namrata wd/o Jatin Upadhyay,
Aged about 37 years, Occu. Housewife,
2-b. Prathamesh s/o Jatin Upadhyay,
Aged about 14 years, Occu. Education,
2-c. Devashree d/o Jatin Upadhyay,
Aged about 12 years, Occu. Education,
Respondent no.2-b and 2-c are through natural
guardian mother Smt. Namrata Jatin
Upadhyay, R/o Bhanapeth, Chandrapur,
Tah. & Dist. Chandrapur.
3. Pratik s/o Sharad Upadhyay,
Aged about 38 years, Occu. Service,
R/o Behind Laxmi Saw Mill, Upadhyay Chawl,
::2:: SA.147__148.2021._Judgment--.doc
Gaurakshan Ward, Wardha, Tah. & Dist.
Wardha.
4. Anantrai s/o Ramshankar Upadhyay,
Aged about 80 years, Occu. Business,
R/o Mohini Nagar, Back side of G.M. Motors,
Wardha, Tah. & Dist. Wardha.
5. Arvind s/o Ramshankar Upadhyay,
(Deceased) through his legal heirs.
5-a. Sau. Bina Devendrakumar Pancholi,
Aged about 52 years, Occu. Housewife,
R/o Old Panjrapol Road, Sumit Nagar Society,
Block No.203, Vanish Apartment,
First Floor, Baroda (Gujarat).
5-b. Sau. Amisha w/o Nipunkumar Trivedi,
Aged about 48 years, Occu. Housewife,
R/o Block No.B-701, Ram Tower, Yogi
Nagar, Borivali (West) Mumbai.
6. Vasant s/o Ramshankar Upadhyay,
Aged about 75 years, Occu. Business,
R/o Near Mahila Ashram, Near Petrol Pump,
Sai Apartment, Wardha, Tah. & Dist. Wardha.
7. Wardha Nagri Sahakari Adhikosh Maryadit,
through its Branch Manager, Main Road,
Wardha, Tah. & Dist. Wardha.
8. Jignesh s/o Ramshankar Upadhyay,
Aged about 44 years, Occu. Service,
R/o M/s R.P. Upadhyay, B-1, M.I.D.C. Colony,
Wardha, Tah. & Dist. Wardha.
9. Hitesh s/o Vasant Upadhyay,
Aged about 47 years, Occu. Business,
R/o Near Mahila Ashram, Near Petrol Pump,
Sai Apartment, Wardha, Tah. & Dist. Wardha.
::3:: SA.147__148.2021._Judgment--.doc
WITH
SECOND APPEAL NO.148 OF 2021
APPELLANTS:- 1. Girish s/o Ramshankar Upadhyay,
(Org. Judgment debtor) Aged about 70 years, Occ. Business.
On R.A.
2. Chirag s/o Girish Upadhyay,
Aged about 38 years, Occ. Business,
3. Jakisan s/o Girish Upadhyay
Aged about 35 years, Occu. Business,
All R/o Pitruchayya, Upadhyay Niwas,
Near Chirag Bekery, Wardha-Nagpur
Road, Wardha, Tah. & Dist. Wardha.
... VERSUS ...
RESPONDENTS:- 1. Anantrai s/o Ramshankar Upadhyay,
On R.A. Aged about 82 years, Occu. Business,
R/o Upadhyay Chawl, Gaurakshan
Ward, Wardha, Tah. & Dist. Wardha.
2. Arvind s/o Ramshankar Upadhyay,
(Deceased) through his legal heirs.
2-a. Sau. Bina Devendrakumar Pancholi,
Aged about 52 years, Occu. Housewife,
R/o Old Panjrapol Road, Sumit Nagar Society,
First Floor, Baroda (Gujarat).
2-b. Sau. Amisha w/o Nipunkumar Trivedi,
Aged about 48 years, Occu. Housewife,
R/o Block No.B-701, Ram Tower, Yogi
Nagar, Borivali (West) Mumbai.
3. Vasant s/o Ramshankar Upadhyay,
Aged about 75 years, Occu. Business,
R/o Near Mahila Ashram, Near Petrol Pump,
Sai Apartment, Wardha, Tah. & Dist. Wardha.
4. Sharad s/o Ramshankar Upadhyay,
Aged about 72 years, Occu. Business,
R/o Upadhyay Chawl, Gaurakshan Ward,
Wardha, Tah. & Dist. Wardha.
::4:: SA.147__148.2021._Judgment--.doc
5. Wardha Nagri Sahakari Adhikosh Maryadit,
through its Branch Manager, Main Road,
Wardha, Tah. & Dist. Wardha.
6. Jignesh s/o Ramshankar Upadhyay,
Aged about 44 years, Occu. Service,
R/o M/s R.P. Upadhyay, B-1, M.I.D.C. Colony,
Wardha, Tah. & Dist. Wardha.
7. Jatin s/o Sharad Upadhyay (Deceased)
through his legal heirs.
7-a. Smt. Namrata wd/o Jatin Upadhyay,
Aged about 37 years, Occu. Housewife,
7-b. Prathamesh s/o Jatin Upadhyay,
Aged about 14 years, Occu. Education,
7-c. Devashree d/o Jatin Upadhyay,
Aged about 12 years, Occu. Education,
Respondent no.7-b and 7-c are through
natural guardian mother Smt. Namrata Jatin
Upadhyay, R/o Bhanapeth, Chandrapur,
Tah. & Dist. Chandrapur.
8. Pratik s/o Sharad Upadhyay,
Aged about 38 years, Occu. Service,
R/o Behind Laxmi Saw Mill, Upadhyay
Chawl, Gaurakshan Ward, Wardha, Tah. &
Dist. Wardha.
9. Hitesh s/o Vasant Upadhyay,
Aged about 47 years, Occu. Business,
R/o Near Mahila Ashram, Near Petrol Pump,
Sai Apartment, Wardha, Tah. & Dist. Wardha.
****************************************************************************************************************
Shri M.G. Bhangde, Senior Advocate a/b Shri S.S. Sarda, Advocate for the Appellants (in
both Second Appeals).
Shri A.A. Dhawas, Advocate for Respondent Nos.1, 4, 6 & 8 (in S.A. No.147/2021) and
Respondent Nos.1, 3, 4 & 6 (in S.A. No.148/2021).
Shri R.D. Hajare, Advocate & Ms. Kalyani Joshi, Advocate for Respondent Nos.2(a), 2 (b),
2(c), 3, 5(a), 5(b) & 9 (in S.A. No.147/2021) and Respondent Nos.2(a), 2(b), 7(a), 8 & 9 (in
S.A. No.148/2021).
****************************************************************************************************************
::5:: SA.147__148.2021._Judgment--.doc
CORAM : S. M. MODAK, J.
RESERVED ON : 5th OCTOBER, 2021
PRONOUNCED ON : 21st JANUARY, 2022
JUDGMENT:-
The suit for partition bearing Special Civil Suit No.29/1996 filed by one Anantrai Ramashankar Upadhyay was decreed on 13th October, 2003. The trial Court has declared 1/5 th share in the suit properties each to the plaintiff and four defendants. The house in respect of which dispute is pending in these two appeals is one of those suit properties. The house is described as Upadhyay Niwas situated on Nagpur, Wardha Road and one Godown. The house consists of ground floor and two upper floors. It seems that it is the old house in which common ancestor deceased-Ramashankar and his family members used to reside.
02] The correctness of the said decree was tested before the First Appellate Court, before this Court and finally before the Hon'ble Apex Court. The proceedings were dismissed by the Hon'ble Apex Court on 23rd September, 2019.
Suit for Partition 03] The suit for partition was mainly contested by defendant No.4-Girish Upadhyay and defendant No.9-Chirag Upadhyay. They are ::6:: SA.147__148.2021._Judgment--.doc the appellants in present Second Appeal 147/2021. They have pleaded that deceased-Ramashankar had executed a Will during his lifetime and bequeathed the present property to defendant No.9-Chirag Upadhyay and one Jaikishan Upadhyay (he was not a party defendant). They are the sons of defendant No.4-Girish Upadhyay. The said sons and their father are the appellants in present Second Appeal No.148/2021.
Execution 04] The two orders dated 17th March, 2018 which are challenged before this Court are passed in F.D.P. No.9/2003 & 10/2003. F.D.P. No.9/2003 was filed by Sharad Ramashankar Upadhyay (defendant No.3), Jatin Sharad Upadhyay (defendant No.7) and Pratik Sharad Upadhyay (defendant No.8). Defendant Nos.7 and 8 are the sons of Sharad Ramashankar Upadhyay. Sharad Upadhyay was declared with 1/5th share. Other F.D.P. No.10/2003 is filed by plaintiff Anantrai Ramashankar Upadhyay. Other sharers are the opponents in those proceedings. One Wardha Nagri Sahakari Adhikosh Maryadit was defendant No.5 in the suit (in whose favour there was a mortgage deed executed by some of the sharers). They are one of the respondent in these appeals.
05] The applicants in those final decree proceedings have prayed for--
::7:: SA.147__148.2021._Judgment--.doc Drawing up of final decree by appointing Court Commissioner. (This is one of the prayer with which we are concerned in these Appeals) 06] The executing Court i.e. Joint Civil Judge (Senior Division), Wardha passed following orders in those proceedings on 13/10/2008-
a) Court Commissioner Advocate Shri Udapurkar was appointed to partition the house and immovable properties.
b) Chartered Account is appointed to verify accounts.
At the same time simultaneously appeal challenging partition decree was pending adjudication.
Report of Court Commissioner 07] The Court Commissioner submitted his report on 5th July, 2006 (Exh.44). He has opined that the house property is not capable of partition and accordingly, he has advised for sell of that property. This is the background for passing of the two impugned orders by the Executing Court. By those Orders, sale of house property is ordered by public auction.
08] After this report, nothing happened till 17th March, 2018. The Executing Court, as per the order dated 13 th October, 2008, has ::8:: SA.147__148.2021._Judgment--.doc stayed both the final decree proceedings as the First Appeal No.123/2004 was pending in this Court. The respective applicants in both the proceedings made request for sale of the house property as per the report of learned Court Commissioner. Those applications were filed at Exh.47 (FDP No.9/2003) and at Exh.33 (FDP No.10/2003). The Executing Court ordered sale of the house property by public auction as per two separate orders passed on 17th March, 2018.
First Appeal 09] These two orders challenged by present appellants before District Court, Wardha by preferring RCA No.79/2020 and RCA No.78/2020. Their appeals came to be dismissed on 2nd July, 2021. That is how, the appellants have filed present two second appeals. Even though the orders are passed on separate applications in two final decree proceedings, the prayer made in them is the same and it is about sale of the property as per the report of learned Court Commissioner and hence both the appeals are decided by common judgment.
Second Appeals 10] After hearing both the sides, this Court has framed six substantial questions of law as per the order dated 9th August, 2021. Considering the stage of litigation at which impugned orders were ::9:: SA.147__148.2021._Judgment--.doc passed by the Executing Court, both these appeals were taken up for final hearing. Accordingly, I have heard learned Senior Advocate Shri M.G. Bhangde for the appellants, learned Advocate Shri A.A. Dhawas, learned Advocate Shri R.D. Hazare and learned Advocate Ms. Kalyani Joshi for respective respondents. One more substantial question of law was framed at Serial No.(g) on 30th September, 2021. 11] Learned Senior Advocate Shri Bhangde emphasized on various subjects including lacunaes/shortcomings in the steps taken by the applicants in two final decree proceedings, the attitude of the Executing Court in dealing with the application by not considering the provisions of relevant law and the various provisions of the Code of Civil Procedure and the Partition Act, 1893. Whereas, learned Advocates appearing for all the respondents emphasized on dilatory tactics played by these appellants and it is for the purpose of denying the decree holders about the fruits of the decree. The following are the substantial questions of law which arose for our determination :-
(a) Whether the First Appellate Court was right in accepting the Court Commissioner's Report without examining the Court Commissioner and by wrongly holding that not taking objection by these respondents amount to accepting the Court Commissioner's Report ?
::10:: SA.147__148.2021._Judgment--.doc
(b) Whether the First Appellate Court failed to give its own finding pertaining to acceptance of the Court Commissioner's Report ?
(c) Whether the First Appellate Court committed wrong in confirming the order thereby permitting sale of the property by public auction particularly when final decree has not been passed ?
(d) Whether the First Appellate Court committed wrong in observing that these appellants have not objected to the prayer for sale by treating the objection taken by judgment debtor Nos. 1 and 6 as given by these appellants ?
(e) Whether First Appellate Court committed wrong in confirming the order of sale by not considering the provisions of Section 2 of the Partition Act ?
(f) Whether the First Appellate Court committed wrong in accepting the application on behalf of the decree holders thereby seeking any order for sale of the property even though that application was not signed on behalf of the decree holders and not verified ?
(g) Whether the executing Court can take recourse to the provisions of Order 21 Rules 64 to 66 of C.P.C. about sale of the property particularly when the partition decree is sought to be executed ?
::11:: SA.147__148.2021._Judgment--.doc Submissions of Appellants 12] If the objections taken on behalf of appellants are considered, broadly, they are of two kinds. One is about procedure to be followed prior to getting particular relief from the Court and second is the provisions of substantive law. The sum and substance of his arguments can be summarized as follows :-
a) Passing the order by the Executing Court on 17 th March, 2018 hurriedly in both the proceedings without verifying whether copy of those applications were served on these appellants and without waiting for these appellants to file reply.
b) Passing orders on applications at Exhs. 47 & 33 even though these applications were not verified in the manner laid down under the Code of Civil Procedure.
c) Accepting the report filed by the Court Commissioner blindly and without applying its judicial mind.
d) Accepting the report by the Court Commissioner without recording his evidence.
e) Not taking objection to the said report on behalf of the appellants does not amount to accepting the said report.
f) Passing an order of sale by public auction even though final decree was not drawn.
::12:: SA.147__148.2021._Judgment--.doc
g) Taking recourse illegally to the provisions of Order XXI Rule 66 of the C.P.C. while ordering sale of property (that provision can be resorted to only when money decree is passed).
h) Not taking recourse to the provisions of the Partition Act, 1893.
i) Sale of the property cannot be ordered without valuation of the property is being done.
j) Giving a finding that "there is irregularity in ordering sale of the property without passing a final decree" by the Appellate Court, (para-17) but still not setting aside those orders".
Submissions of Respondents 13] As against this, learned Advocates appearing for the respondents supported the impugned orders on following grounds--
a) Accepting the Commissioner's report in the year 2006 only, but not taking objection till the time the impugned orders were passed.
b) Even not taking objection by the appellants to the observations of the learned Court Commissioner when he visited the site.
::13:: SA.147__148.2021._Judgment--.doc
c) The grievances made by the appellants about the impugned orders were rejected on 4th April, 2018 by the Executing Court while rejecting the applications (Exh.48 &
35) for recalling of the impugned orders.
d) Said orders dated 4th April, 2018 were not challenged by the appellants and it amounts to accepting the findings.
e) The applications for inspecting the spot by the Court (Exh.83 & 72) were rejected.
f) The provisions of Order XXI Rule 66(2) of the C.P.C. are directory and omission to serve notice on judgment debtor does not make the sale nullity (1973 Mh.L.J. 384).
g) Examination of Court Commissioner is not required before accepting his report.
h) If consequences for non-compliance of the procedure are provided in the statute, in that eventuality the procedure is directory.
i) When Exh.33 was filed in FDP No.10/2003, no objection was given by the judgment debtor Nos.2 & 11 and no objection was given by judgment debtor Nos.1 & 6 at Exh.46 in FDP No.9/2003.
j) Passing an order of sale without passing of final decree cannot be said to be an illegality, but it is mere irregularity.
::14:: SA.147__148.2021._Judgment--.doc
k) Sale can be ordered by taking recourse to the provisions of Order XXI Rule 64 of the C.P.C. when there is an execution of any kind of decree including preliminary decree for partition.
l) The provisions of the Partition Act will prevail over the general provisions of the Code of Civil Procedure.
m) Sale under Section 2 of the Partition Act also includes sale by public auction.
n) Fixing of reserved bidding under Section 6 of the Partition Act will be the responsibility of the Court and parties, cannot be blamed for any omission.
o) The requirement of moiety under Section 2 of the Partition Act is fulfilled, because sharers who are willing to sell the property are having 80% of the moiety.
p) No shortcoming or lacuna is pointed out from the report of the Court Commissioner.
14] Learned Advocate for the appellants relied upon the following judgments--
1. Bashiruddin Khwaja Mohiuddin Vs. Binraj Murlidhar Shop Malkapur by Partners &Ors.1 Undivided share in two lands was sold for repayment of the debt. Transferee filed a suit 1 1987 Mh.L.J. 30 ::15:: SA.147__148.2021._Judgment--.doc for partition and preliminary decree was passed. Issue had arisen about the powers of the executing Court. On this background, it was observed that F.D.P. are mere continuation of preliminary decree proceedings and there is no executable decree unless final decree proceedings are finally disposed of.
2. Annasahed Rajaram Nagane & Another Vs. Rajaram Maruti Nagane & Others2. There was preliminary decree thereby declaring shares in immovable property assessed to land revenue. Precept was sent to the Collector. In turn, it was sent to the District Inspector of Land Records. The number of the lands were changed due to consolidation scheme. On this background, the Executing Court asked the decree holders to supply details sought by D.I.L.R. The said order was not complied and hence, the execution application was dismissed for default (para 5). An application for restoration was also dismissed. Second Regular Darkhast was filed, it was dismissed as barred by law of limitation and hit by the principles of res judicata. Revision was filed before this Court. This Court has considered the scheme of the Code, it was held that decree 2 2001(3) Mh.L.J. 53 ::16:: SA.147__148.2021._Judgment--.doc cannot be made effective without there being a final decree. Before formal expression of adjudication thereby determining rights of the parties. Rights in the final decree proceedings are required to be worked out until rights of the parties by metes and bounds are determined. There is no executable decree in the eyes of law. Drawing up a final decree and engrossing it on stamp paper together constitutes final decree (para 17).
3. Shobhabai wd/o Manik Teltumbade Vs. Dadaji s/o Jairamji Waghmare3. The requirement of embossing preliminary decree on stamp papers was reiterated, once the compliance is made after receipt of precept, it becomes a final decree.
4. Hasham Abbas Sayyad Vs. Usman Abbas Sayyad & Others4. The similar issue was involved. Without initiating a formal final decree proceedings, question was whether the property in suit could be put on auction sale (para 3). While commenting on law of limitation involved in final decree proceedings, it was observed that without drawing up a final decree proceedings, the Court could not have put the property on auction sale (para 19).
32014(1) Mh.L.J. 542 4 (2007) 2 SCC 355 ::17:: SA.147__148.2021._Judgment--.doc
5. Devidas Vs. Gangadhar5. There was an issue of evidenciary value of Commissioner's report. The trial Court has not accepted the report as a basis for grant of relief to the plaintiff. Whereas, the First Appellate Court relied upon the said report without examination of the Commissioner. So, the relief was granted on the said report by ignoring other evidence. That is how, insistence of examining the Commissioner is laid down. Learned Advocate Shri Dhawas is right in his submission that in that matter, there was trial of the suit in which the report produced. According to him, the trial has already been concluded and the report of Commissioner was produced in an execution.
6. Pannalal Datta V/s Hrishikesh Datta 6. The High Court of Calcutta has faced with a situation wherein the sharers have not requested for sale of property put to execution of a partition decree. The Partition Act empowers the Court to order sale of property when partition was not practical and there is a request of shareholders interested in a moiety of property. As those conditions were not fulfilled, the provision of law prevailing prior to enactment of 5 2014 SCC OnLine Bom 3494 6 Indian Law Reports (1949) 1 Cal. 192 ::18:: SA.147__148.2021._Judgment--.doc Partition Act was resorted to and accordingly, sale was ordered. There was direction to sell the property to co- sharer who will offer highest price above the valuation made by the Court.
15] Learned Advocate Shri A.A. Dhawas relied upon the following judgments--
1. Satyawati Vs. Rajinder Singh & Ors7. The Hon'ble Supreme Court has reproduced the observations made by Privy Council as back as in the year 1872 "the difficulties of a litigant in India begin when he has obtained a decree". The Hon'ble Supreme Court was perturbed due to the situation that is the decree holder could not enjoy the fruits of her success in the year 2013 when she finally succeeded in January, 1996. The observations in the earlier judgment "procedure is meant to advance the cause of justice and not to retard it" were considered. (para 14)
2. Sundrabai Vs. Anandrao8. The word 'shall' used in Rule 66(3) of Order XXI of CPC was interpreted as may. It talks about annexing a statement signed and verified to any application made under Rule 66.
7 2014(1) Mh.L.J. 624 8 [1973 Mh.L.J. 384] ::19:: SA.147__148.2021._Judgment--.doc
3. Rajendra Prasad Gupta Vs. Prakash Chandra Mishra & Ors. 9 While interpreting the provisions of Section 151 of the Code, it was held that the provision has to be interpreted to mean that every procedure is permitted by the Court for doing justice unless prohibited and not that every procedure is prohibited unless expressly permitted.
4. Dhirendra Nath Gorai Vs. Sudhir Chandra Ghosh 10. Final decree passed in mortgage suit was put to execution. Valuation was given. The respondent though received a notice under Order XXI Rule 66 of CPC, has not filed objection to the valuation. One property was purchased. An application was filed for setting aside sale under the provisions of Order XXI Rule 90 of CPC for non-compliance of the provisions of Section 35 of CPC. The procedure laid down in Section 35 of the Code was held for the benefit of judgment debtor and, as such, he can waive compliance of the procedure therein.
5. Indu Singh & Anr. Vs. Prem Chaudhary & Ors. 11. This judgment was pronounced when certain issues were referred and Larger Bench was constituted. Similar issue was involved therein and that is whether order of sale is a final decree of 9 2011 LawSuit(SC) 291 10 1964 LawSuit(SC) 59 11 2018 LawSuit (Del) 2349 ::20:: SA.147__148.2021._Judgment--.doc partition or just another preliminary decree. The provisions of Partition Act, 1893 the anomalies/defects in the law prior to enactment of 1893 Act, anomalies/defects still remain after passing of Partition Act, 1893 were all considered. It was held that the provisions of Section 2 of the Partition Act can be resorted to when property is to be sold in execution of preliminary decree and particularly when property is impartible. Various provisions of Partition Act are also discussed. The provisions of Order XX Rule 18 "and giving such further directions as may be required" were interpreted. So even if joint owners are less than 50%, they can ask for sale of the shares and Court can order it by taking recourse to the provisions as mentioned above. Judgment in the case of Shankar Balwant Lokhande (Dead) Vs. Chandrakant Shankar Lokhande & Another12 was referred (para 12). The definition of decree under Section 2(2) of the Code is also considered. In paragraph 18.3, it is observed thus--
a) Declaration of right or share is the first stage in the suit for partition.
b) Preliminary decree does not have the effect of disposing of the suit and suit continues until partition by metes and bounds 12 (1995) 3 SCC 413 ::21:: SA.147__148.2021._Judgment--.doc takes place by passing final decree.
c) An application requesting the Court to take necessary steps to draw of final decree is neither an application for execution (Article 136 of Limitation Act) nor an application seeking fresh relief as per Article 137 of the Limitation Act.
d) It is only reminder to the Court to do its duty to appoint Commissioner, get a report, draw final decree so that suit is taken to its logical conclusion.
e) Finally, it was held that order of sale is a final decree of partition being an instrument of partition under Section 2(15) of the Stamp Act (para 16-iii). Hence, order of sale passed in a partition suit is held as a final decree and that has to be stamped. It was further held that steps for sale of property in terms of order passed under Section 8 of the Partition Act will be steps in execution of the final decree and would not be steps prior to passing of final decree.
No challenge to order on review 16] By way of reply, learned Senior Advocate Shri Bhangde submitted that there is no need to challenge the correctness of the order passed by the Executing Court on their two applications ::22:: SA.147__148.2021._Judgment--.doc requesting for review of two orders permitting sale by public auction. He clarified the position when subsequent order is passed on the background of earlier order whether it is by the same Court or by the higher Court. He also submitted that if their applications for recalling could have been allowed, it might have impact on the earlier order. That is to say, earlier order might have been recalled or might have been modified. But, when their application for recall was not allowed, it has no bearing on the first order. According to him, remedy of recall by way of review is different from remedy of an appeal. Both are independent.
17] In support of his contention, he relied upon a judgment in the case of DSR Steel (Private) Limited Vs. State of Rajasthan & Others13. In paragraph 25.3, the present contingency has been interpreted. When there is refusal to interfere, decree in such case suffers neither any reversal nor alteration nor modification. There is no question of merger. I agree with the submission made above. Not challenging those orders passed on recalling applications does not come in the way of appellants in challenging the impugned orders. 18] Before expressing further comment on contentions advanced before me, it will be material to consider the relevant provisions of law.
13 (2012) 6 SCC 782 ::23:: SA.147__148.2021._Judgment--.doc Provisions of the Code of Civil Procedure 19] There are three provisions pointed out before me. They are as follows--
a) Order XX Rule 18(2) of the Code.
b) Order XXI Rules 64 to 66 of the Code.
c) Order XXVI Rules 13 & 14 of the Code.
Passing of Partition Decree 20] Order XX Rule 18 is incorporated in the chapter under the heading "judgment and decree". That is to say, when there is a suit for partition, how decree is to be passed is laid down in Rule 18 of the Code. Rule 18(1) deals with partition of land which are assessed to land revenue (we are not concerned in the present appeals). Rule 18(2) of the Code deals with passing of a decree when suit involves other immovable property or movable property. It casts an obligation on the Court :-
a) To pass a preliminary decree that is to say, when partition or separation cannot be conveniently made.
b) There is also a guidance what the preliminary decree should incorporate.
c) When rights of several parties interested in the property are declared, it is a preliminary decree.
d) Court may give such further direction as may be required.
::24:: SA.147__148.2021._Judgment--.doc This has been interpreted by High Court of Delhi in the case of Indu Singh as referred above.
Meaning of Word Decree 21] Section 2(2) of the Code lays down the meaning of the word decree. It is as follows--
a) Formal expression of an adjudication.
b) Which conclusively determines rights of the parties in the suit.
c) It may be either preliminary or final.
22] By way of explanation, it is clarified that when further proceedings have to be taken before the suit can be completely disposed of, it is preliminary. When adjudication completely disposes of the suit, it is final (it may be partly preliminary or partly final). 23] In this case, there is no dispute that there is a preliminary decree is passed by the Civil Court when Special Civil Suit No. 29/1996 was decided. The controversy does not rest there. Once preliminary decree is passed, what are the further steps required to be taken is the major area of controversy between the parties. It is no doubt true that the 'lis' needs to be decided finally and it can be done by drawing up a final decree. There is consensus amongst both the sides that there is no format prescribed for filing an application for drawing up a final ::25:: SA.147__148.2021._Judgment--.doc decree. Order XXI Rule 11(1) talks about making an oral application in case of execution of money decree, whereas Rule 11(2) says about the particulars to be given in written application for execution of decree. One of such particular is what mode the decree holder wants i.e. assistance from the Court. Clause (j) prescribes following modes--
i. By delivery of property.
ii. By simple attachment or by attachment and sale or by simple sale.
iii. By arrest and detention.
iv. Appointment of receiver.
v. Otherwise as the nature of relief may require. 24] If the entire provisions of Order XXI pertaining to execution of decree and orders are perused, we do not find any provision as to how partition decree is be executed. There are detail provisions in respect of modes of delivery of possession, arrest and detention, attachment and sale. Similarly, no one can dispute that partition decree relating to land can effectively be executed simply by any of the modes (i) to (iv). Part II of the Code contains provisions about execution. Section 54 specifically deals with partition of estate, but it specifically deals with share of land assessed to land revenue and it has to be carried out by Collector. It does not deal with partition of other immovable property. Part II of the Code also lays down modes of ::26:: SA.147__148.2021._Judgment--.doc arrest and detention, attachment and sale. It also does not contain provision how shares other than land revenue paying property are to be distributed and what is to be done so as to put the sharers in possession of property other than land revenue paying property coming to his share.
25] However, Part III of C.P.C. under the title 'incidental proceedings' contains a provision for issuing commissions. It may be issued for different purposes. Section 75(d) contains provision for issuing commission for the purpose of partition. In that context, it will be material to consider the provisions of Order XXVI relating to issuing commissions. Rules 13 & 14 deal with the provisions for issuing commissions to make partition. The provisions of Rule 13 says as under-
When there is a preliminary decree for partition :--
a) Commission may be issued.
b) To such fit person.
c) To make partition/separation (as per rights declared in
preliminary decree).
d) When it is not covered under Section 54.
26] So issuing commission is the mode prescribed for giving
effect to preliminary decree for partition. Rule 14 lays down the ::27:: SA.147__148.2021._Judgment--.doc procedure. There are three sub rules. It is as follows--
a) The Commissioner may divide the property.
b) After conducting enquiry as may be necessary.
c) Shall allot shares to the parties.
d) May award sums to be paid for the purpose of equalizing the value of shares (if authorised) (principle of owelty/ equalization).
27] This is laid down in Rule 14(1). Rule 14(2) prescribes the procedure to be followed by the Commissioner after the first part is over. It is as follows-
a) Prepare a report.
b) Distinguish each share by metes and bounds.
c) Transmit it to the Court.
28] The Court under Sub Rule 3 is empowered to hear the parties on an objection, if any. The Court is given with following options--
a) Confirm the report.
b) Vary the report.
29] Rule 14(3) lays down the procedure about passing a decree by the Court. The Court has following options : -
a) When the report is confirmed.
b) When the report is varied.
c) When the report is set aside then ::28:: SA.147__148.2021._Judgment--.doc The Court may either issue new commission or make such other order as it shall think fit.
30] There is emphasis on this provision because the Executing Court has issued a commission through learned Advocate for effecting the partition vide order dated 23rd July 2004. In case before us, the Executing Court has ordered for sale of the property as recommended by learned Court Commissioner. The sale is ordered because property was impartible. No doubt, when the Court has passed an order of sale, it means the Commissioner's report is confirmed. Whether the Executing Court has exercised the discretion properly or not is an issue. It will be material to consider what orders could have been passed by the Executing Court on the basis of report submitted by the learned Court Commissioner.
a) The Executing Court can refuse the recommendations. In that contingency, the Court is required to pass order to appoint new commission or Court may pass any other order. In the present set of facts appointing new commission would not have achieved the desired result.
b) If the report is confirmed and sale is ordered, the Court could certainly pass a decree. However, prior to passing of decree, the procedure of sale needs to be completed. The ::29:: SA.147__148.2021._Judgment--.doc crux of the matter is in such a contingency, whether the Court can order sale of the property and if so, under which provision of law.
Non-examination of Court Commissioner 31] What procedure the Court should follow once the report is submitted by Court Commissioner is laid down in Order XXVI Rule 14 (3) of C.P.C. Here the grievance is made on behalf of the appellants that proper procedure has not been followed. According to them, the Commissioner ought to have been examined on oath by the Executing Court. For that purpose, there is emphasis on the judgment in the case of Devidas Vs Gangadhar as referred above. Whereas on facts the respondents differentiated facts involved before us. It is true that the issue of non-examination of the Commissioner was involved in that case. However, it is also true that in that case decree has not attained finality. This court was dealing with Second Appeal against the judgment of the First Appellate Court. So, the non-examination of the Commissioner was considered as one of the grounds for setting aside the decree passed by the First Appellate Court. It is very well true that in the present case, the decree has attained finality upto Hon'ble Supreme Court. It is true, in a case before us, the issue of examination of Court Commissioner had come in the execution proceeding.
::30:: SA.147__148.2021._Judgment--.doc Nature of Inquiry 32] The objection can be answered only when we will understand the nature of inquiry contemplated when the report is submitted by the Court Commissioner. If we will consider the nature of duties of Commissioner, we may understand that he has to work within the limits/purpose for which he is appointed. In the present case, he is appointed for effecting partition by metes and bounds. For that purpose, he has to visit the spot and inspect the property to be partitioned. There he is supposed to interact between the sharers and possibly with the occupants. While submitting the report, he is supposed to include in that report what he has done on the spot including interaction with the parties and supposed to give his opinion. 33] Ultimately, Order XXVI Rule 14 (2) of the Code empowers the Court to pass an appropriate order. While doing that exercise Court is supposed to hear the objections if any of the parties. When the law permits the parties to take an objection, the right of hearing is protected. Here it will be material to state that already shares are declared when the preliminary decree was passed and the question only remains which sharer is to be granted which share of the property. Learned Advocate Shri Dhawas is right in his submission that the appellants have nowhere clarified about their objections to the contents ::31:: SA.147__148.2021._Judgment--.doc of the Commissioner Report.
34] According to him, objection relates to the procedure followed by the Commissioner and by the Court. Even I do not find anywhere any objection about the opinion that the property is impartible. Now, it is to be seen whether appellants got an opportunity to challenge the opinion expressed by the Commissioner in his report at Exhibit-44 and what are the findings recorded by the Appellate Court.
Findings recorded by the First Appellate Court "In view of this legal provision, it is not correct to say that by passing impugned orders for sale upon considering opinion of the Court Commissioner learned trial Court went behind the decree. Court has ample power to do so when required and if such order is passed the same cannot be termed as order beyond the decree".
These findings cannot be said to be proper. They are certainly erroneous. First appellate court has not understood the difference between the objection as to 'going behind the decree' and the objection about not following the procedure by the Executing Court while accepting the report of the Court Commissioner.
An Opportunity To Object to the Court Commissioner Report 35] It is true that the Court Commissioner has submitted his report on 5th July 2006 / 13th October 2008 (Exhibit-44). There is an ::32:: SA.147__148.2021._Judgment--.doc entry in the Roznama of F.D.P.-9/2003. Roznama further says that "Order of High Court is awaited as the proceedings are stayed". The Appellate Court has emphasized on the conduct of appellants in keeping silent and not taking objection. The learned Senior Advocate Shri Bhangde is also right in his submission that there was no occasion for the appellants to challenge the said report till the time an application for sale of the property was filed in the year 2018. It will be material to narrate the important events as follows :-
Exh. 46 12/03/2018 An application under Order XXI Rule 64 of C.P.C. for F.D.P 09/2013 sale of property as per the Report of Court Commissioner.
17/03/2018 As similar application is filed in F.D.P.10/2003 hence not pressed.
Exh. 33 14/02/2018 --- To order sell of property as per the report of Court
F.D.P. 10/2003 Commissioner.
--- Say of other side was called
--- Say from JD-1,3 to 10 not filed put up for order. 7.3.2018
---- No objection.
--- 17/03/2018 - Sale by public auction ordered and direction to prepare proclamation.
--- 02/04/2018 copy received.
Exh.47 17/03/2018 --- An application under Section 2 of the Partition Act F.D.P. 09/2003 for sale as per the Report of Court Commissioner.
--- Say of other side called.
17/03/2018 Sale by public auction ordered and direction to prepare proclamation.
--- 02/04/2018 copy received.
Exh. 48 02/04/2018 --- For recalling the order dated 17/03/2018 thereby F.D.P. 09/2003 ordering sale by public auction. Exh. 35 & 36 02/04/2018 --- An application for recalling and for granting F.D.P. 10/2003 adjournment as Second Appeal is pending. Exh. 48, 49, 35 04/04/2018 - All applications are rejected. & 36 ::33:: SA.147__148.2021._Judgment--.doc 36] The above events are undisputed we can certainly infer that present appellants who are the judgment debtors in two final decree proceedings have not filed their say on the report of learned Court Commissioner. If we consider the period from the date of filing of that report on 5th July 2006 / 13th October 2008 till the time of passing of orders to sell property, the period is almost ten years. But when the matter is stayed by this Court was there any necessity for the appellants to file reply ? No doubt grant of stay certainly has not prevented them from filing a reply. The Appellate Court observed -
"For the period two years or more from 5 th July 2006 when the commissioner Report was filed till 13 th October 2008 when the matters were ordered to be stayed there were about 25 adjournments for say on the Commissioner Report. Contesting defendants attended the Court almost on every date. If at all they were not agree with the report why they have not taken objection during the aforesaid considerable period is unanswered".
Does it mean to say that by not filing reply, they have committed any mistake ?
37] On this background when the two orders passed on Exhibit-47 and Exhibit-33 on 17th March 2018 are perused, we may find that these appellants have not filed replies. If the contents of those orders are perused, it is not clear that the Executing Court has satisfied herself about intentional delay in filing reply by these appellants. Learned Advocate for respondents from the Roznama attempted to ::34:: SA.147__148.2021._Judgment--.doc point out that these appellants are very much aware about filing of those applications as it is clear from Roznama. Learned Senior Advocate Shri Bhangde also pointed out that their local counsel have received the copies on 02/04/2018 i.e. after passing of the impugned orders on 17/03/2018. Now, it may be a deliberate act also. It will be material to consider what the appellate court has opined on this aspect. Para No.30 says as follows :-
"Above argument sounds attractive at first place. However, upon given thoughtful consideration I find no water in it. Application at Exhibit 33 was already filed on 14/02/2018 a month prior to filing of Exhibit 46 and 47. It also bears endorsement as 'received copy' on 02/04/2018. However, when Exhibit 46 was not pressed on 17/03/2018 by defendant No.3 giving reason that similar application was filed in another proceeding learned counsel for contesting defendants seems to have given no objection in writing for not pressing the said application. It shows presence of the counsel for contesting defendants in the Court on 17/03/2018 and his knowledge of the dependency of similar application in another proceeding. Yet they are claiming that they had no knowledge of the applications till they received copies on 02/04/2018 which cannot be believed."
It is true that above observations do not find place in the two impugned orders passed by the Executing Court. Still there is no room for disbelieving above said factual observations. The First Appellate Court has rightly focused on inaction of the appellants for two months after filing of Exhibit- 33. In the mean time Exhibit-46 was not pressed. So on hand the appellants are trying to take advantage of supply of copies on 2.4.2018 but on other hand the appellants have not explained what ::35:: SA.147__148.2021._Judgment--.doc they did after 14.2.2018. On account of non explanation for the conduct after 14.2.2018, it is difficult to give benefit of acknowledging copies on 2.4.2018. On this account there is every reason to believe that the appellants acknowledged the copies on 2.4.2018 deliberately late even though they were having knowledge of filing of various applications for sale of the property. The appellate court must have made those observations after perusing the record. The appellate court has focused on filing of an application below Exh. 33 on 14.2.2018. and it was decided on 17.3.2018 along with Exh. 47. The Executing Court in the impugned orders has not referred about these factual observations which the First Appellate Court has referred. But the observations of the First Appellate Court are on the basis of record and the events are not disputed by these appellants. So even when facts warrant the appellants not to file replies earlier, when firstly an application at Exh. 33 was filed they ought to have been vigil. Unfortunately they were not. So I do not find any perversity in finding recorded by the Appellate Court about inaction of the appellants in not filing replies. Yes the appellants were negligent.
Giving No Objection By Judgment Debtors 38] My attention is invited to remark of "no objection" given on Exhibit-33 in F.D.P. 10/2003. Learned advocate for the respondent ::36:: SA.147__148.2021._Judgment--.doc submitted that this was given on behalf of the appellants. It is true that present appellants were judgment debtor Nos. 4, 9 and 10 (Girish, Chirag and Jaykisan) in F.D.P. No. 10/2003. Whereas in the impugned order at Exhibit 33, the Executing Court has observed that "judgment debtor Nos.2 (Vasant) and 11 (Hitesh) were not having any objection". From this, it is very clear that this no objection does not pertain to judgment debtor nos.4, 9 and 10 i.e. present appellants. This Jaykisan was party defendant no.10 to the suit but it seems that his name is deleted from array of defendants. He is cited as non-applicant No.10 in F.D.P. No. 10/2003. But he is not cited as non-applicant in F.D.P. No. 09/2003.
Conclusion 39] For the above discussion, I do not feel that there was need to examine the Court Commissioner on oath. It is for the reason that, "no ground is made out by these appellants to find fault with the opinion expressed by Court Commissioner". It is also for the reason that the appellants were not diligent as observed above. It is also for the reason that scope of inquiry is limited. Other objections by appellants pertains to the procedure followed by the Executing Court prior to ordering sale. These objections govern in different field. They do not relate to examination of Court Commissioner in the Court. The Executing Court is supposed to act within the parameters of Order XXVI ::37:: SA.147__148.2021._Judgment--.doc Rule 14 (2). This can be done even by not examining the court commissioner on oath.
Obligations of Executing Court 40] So also if we will peruse the impugned orders we may find that the Executing Court has just narrated what the learned Court Commissioner has recommended. There is no findings recorded why the Executing Court is accepting those recommendations. Certainly, it is required. Because Order XXVI Rule 14 (2) of the Code empowers the court with all options. It includes confirming the report, varying with the report and setting aside the said report. When such power is given by the Law, it has to be exercised with a full sense of responsibility. From the tenor of both the orders, it cannot be said that the Executing Court has performed its responsibility properly. In fact, the Executing Court has not said about giving no objection by these appellants in the impugned orders. So, the wordings of substantial Question of law (b) are also not correct.
41] In fact in substantial question no. (a) it is mentioned, "not taking objection by these respondents". In fact, it ought to have been not taking objection by the appellants. Necessary corrections be made in question No.(a) . Hence, the findings are:-
::38:: SA.147__148.2021._Judgment--.doc
(a) Passing the two orders without replies of the appellants does not amount to denial of hearing to these appellants due to their conduct.
(b) Executing Court has failed to give her findings on the Commissioner Report and blanketly accepted it.
(c) There was no need to examine the Court Commissioner.
(d) Observation "not taking objection" to the sale of property does not pertain to these appellants.
Hence, question Nos. (a) (b) and (d) are answered accordingly. As to Substantial questions of law (c) , (e), (f) and (g):-
Order of sale Provisions of Order XXI Rules 64 to 66 of C.P.C. and Partition Act 42] According to learned Senior Advocate, Shri Bhangde provisions of Order XXI Rule 64 to 66 of the Code cannot be exhausted when the preliminary decree for partition is put to execution and the correct provision of law is as per the Partition Act. He added a rider to this submission. According to him, it can only be after passing of the final decree. The Executing Court has ordered for sale by public auction by passing impugned orders. The respondents have relied upon the provisions of Order XXI Rules 64 to 66 of the C.P.C to justify those orders. Whereas learned Advocate Ms. Anjali Joshi also submitted Partition Act, 1893 is a special provision and it will override general ::39:: SA.147__148.2021._Judgment--.doc provisions of Code of Civil Procedure. Whereas according to learned Advocate Shri Hazare the provisions contained in the Code are general in application and they are applicable even when partition decree is put to execution.
43] If we consider the provisions of Rule 64 very minutely, we may find following important aspects--
a) There has to be attachment.
b) The property must be liable to sale.
c) It can be sold.
d) The sale proceeds shall be paid to the party who is entitled to receive that amount.
Whereas Rule 66 lays down the procedure to be followed when sale by public auction is to be conducted, issuance of proclamation and manner of issuing proclamation. Whereas Partition Act was enacted in the year 1893 that is earlier to enactment of the present Code of Civil Procedure came into existence in the 1908.
The important provisions of the Partition Act are as follows :--
a] The provisions of the Act are not applicable to local law providing for partition and to the partition of immovable property paying revenue to the Government.
b] Section 2 empowers the court to order sale of the property and distribution of the sale proceeds (subject to fulfillment of the conditions and one of them is ::40:: SA.147__148.2021._Judgment--.doc property must be impartible).
c] Section 3 gives liberty to co-sharer to purchase share of other co-sharer at value fixed by the Court.
d] Section 6 (1) lays down the procedure when sale is to be effected as per Section 2. There shall be reserved bidding and the amount of bidding shall be fixed by the Court.
e] Section 6 (2) grants liberty to shareholder to bid in such sales.
f] Section 7 (b) makes applicable the procedure prescribed by the Rules of the High Court and till the time rules are prescribed, the procedure prescribed as per the Code shall be followed (when the property is situated outside the Presidency town) g] Section 8 gives the status of a decree to an order of sale made under Section 2, 3 or 4.
h] As per Section 9 there is a liberty given to the Court to make part partition and part sale of the property.
44] So, now the issue is whether the Court can order for sale of the property by exercising the power under the provisions of the Partition Act or by exercising the powers under the provisions of Order XXI Rule 64 of the Code. Except the provisions of Rule 64 of the Code, no other provisions of the Code are pointed out to me by the learned Advocate for the respondents. We may find legislative history as to partition in the judgment of Indu Singh as referred above. The ::41:: SA.147__148.2021._Judgment--.doc comparative study of the provisions of the C.P.C. and Partition Act was made. The observations are useful for our discussion. They are reproduced as below :-
a] Before the Partition Act, 1893, the concept of partition only meant partition by metes and bound. So, when metes and bound partition was not possible then it results into a stalemate.
b] The Partition Act was enacted to remedy this failing. c] As per the Partition Act for the first time, the option of selling property was introduced when the property is impartible [even when not possible by applying the principle of owelty or equalization] d] The principle of owelty means when by physical partition a co-owner gets the less or more physical property than falling to as per his percentage share in joint property, then in such a case final partition is effected by, besides physically partitioning the property, also awarding a monetary amount to a person who gets a less share than monetary value.
e] The enactment of the Partition Act, however, did not provide a complete cure, because an entitlement to sale the joint property was only when more than one moiety or upwards of the shareholders agree that the joint property is to be sold. The moiety means 50% or a half share.
::42:: SA.147__148.2021._Judgment--.doc f] So, when less than 50% of the joint owners wanted an order of sale, then such an order of sale could not be passed.
g] The Partition Act was passed in the year 1893 and the Code of Civil Procedure was enacted later in the year 1908.
h] The principle of owelty is clearly specified under Order XXVI Rule 14 of the Code. It empowers the Commissioner to award sums to be paid for the purpose of equalizing the value of the shares.
i] As per Order XX Rule 18 (2) of the Code when straightway a final decree for partition cannot be passed then the Court passes only a preliminary decree declaring the shares. j] After passing a preliminary decree, Order XX Rule 18 (2) empowers the Court to pass "such further directions as may be required" [it has been held that these wordings have removed the shortcomings which remained after enactment of the Partition Act relating to the requirement of moiety] k] Then the Court discussed the practical difficulties in divisioning the property by metes and bounds, particularly in urban areas.
l] "At this stage I would hasten to add that with respect to ::43:: SA.147__148.2021._Judgment--.doc the sale of joint property, the entitlement of a co-owner in terms of Sections 3,4, 6 and 7 of the Partition Act comes in, whereby on an order being passed of sale of joint property, the sale is not necessarily and firstly by public auction/sale, because firstly in the sale proceedings, one or more co-owners can buy out the other co-owner/co-owners i.e. rights of pre-emption.
m] So, when there is a moiety of less than 50% share, the short coming is filled up by taking recourse to the provisions of Order XX Rule 18 (2) - "as to giving such further directions as may be required"
The above are the observations in para Nos. 5 and 6 of Indu Singh's judgment.
45] In this background, the legality of the order of the sale is tested by considering the provisions of Order XXI Rule 64 of the Code. We may find that those provisions cannot be exhausted. A property can be sold by exhausting those provisions only when the property is attached. This is a prerequisite. In this case, there is no question of attachment of the property. Hence, the reference to the provisions is misquoted. In fact, when the applications filed in two final decree proceedings are perused, we may find that an application at Exhibit No.47 [F.D.P. No. 09/2003] was filed by referring to Section 2 of the Partition Act only. So, the only provision which we may find empowers ::44:: SA.147__148.2021._Judgment--.doc the Court to sell the property under the partition is Section 2 of the Partition Act.
46] The property must be impartible which is one of the requirements of that Section. The observations in the case of Sundrabai as referred above relied upon by respondents will not be applicable herein. The word shall have been interpreted as not mandatory but directorary which is used in Rule 66 (2) of Order XXI of the Code. That provision says about issuing notice to the parties prior to issuing the proclamation. It was held that when the sale is ordered without notice, it is for the judgment debtor to decide whether to accept that sale or to avoid it when the notice is not issued to him. This Court has already held that the provisions of Order XXI Rule 64 of the Code are not applicable and hence the question of considering those observations does not arise.
47] Similarly, the observations in the case of Dhirendra Nath Gorai as referred above will not be helpful to the respondents. The question of legality of the decision to confirm the sale of the mortgaged property had arisen. The respondent / judgment-debtor has not protested in spite of receipt of notice under Order XXI Rule 66 of the Code. Then mortgaged property was sold. It was held that the procedure about the issuance of notice was included for the benefit of ::45:: SA.147__148.2021._Judgment--.doc the judgment debtor and when he failed to appear in pursuance to the notice, it is presumed that he has waived the right conferred on him as per Section 35 of the Code.
48] In the present appeals, it has been held that not taking an objection to the report of the Court commissioner on the part of the appellants amounts to a waiver on their part to take the objection. Factually this observation is correct. But the issue is whether the provisions of Order XXI Rule 64 of C.P.C. can be exhausted in given case. The answer is certainly no.
Procedure For Sale As Per The Partition Act 49] There is an issue raised whether there can be a public sale of the property to be partitioned. Section 2 of the said Act does not lay down what will be the manner of sale. That is to say, whether it is a public sale or a sale in between the co-sharers. Sections 3 and 6 give us some assistance. Section 3 empowers a shareholder to seek leave of the Court to buy the share of the party or the parties asking for the sale. In that eventuality, the Court has to fix the valuation of that share. Whereas Section 6 castes an obligation on the Court to fix the reserved bidding. It implies fixing at least the minimum price for which property can be sold. Whenever there is a sale as per the order of the Court, there is a practice of fixing the minimum price. It is for the reason that ::46:: SA.147__148.2021._Judgment--.doc the property should not be sold away at a throw-away price. 50] When the Court passed two impugned orders, the Executing Court has not paid attention to the requirement of fixing at least the minimum price. If such sale could be continued, one does not know at how much price the property would be sold. Hence, the valuation of the property is a must prior to conducting sale. For deciding the issue, whether it should be a sale within the shareholders or it should be a public sale, the wordings of Section 6 also offer us some assistance. Sub-Section 3 mentions the contingency wherein two or more persons advanced the money at bidding and one of them is the shareholder. In that eventuality, it is to be presumed that the bidding is by the shareholder. It contemplates a situation wherein there can be bidding by an outsider also. So, there can be a sale by public auction also. In support of the contention that there can be only sale amongst the co-sharers, learned Senior Advocate Shri Bhangde relied upon the judgment in the case of Pannalal Datta as referred above. In that case, none of the co-sharers have requested for sale of the property subject to partition. It was held that apart from the provisions of Section 2 of the Partition Act, the Court can still order the sale of the property to co- sharers who had offered the highest price. These are the observations depending upon the facts of that case. It does not lay down a proposition that there can be only sale amongst co-sharers. It will be ::47:: SA.147__148.2021._Judgment--.doc material to consider the observations of the first appellate court on this aspect.
51] Unfortunately, the Appellate Court has not given any opinion on the point of applicability of correct provisions of law relating to sale of the property and in fact this is the crucial issue. For the above discussion, it is held that even sale of property to be partitioned can be by public auction. So also, it is held that it is not the provisions of the Order XXI Rule 64 of the Code which can be exhausted but sale has to be by invoking the powers under Section 2 of the Partition Act.
Drawing up of Final Decree 52] The main focus of the argument of the appellants is on "no order of sale can be passed without drawing of final decree". The number of citations have been relied upon. Whereas the respondents also relied upon some of the citations and according to them passing an order as to sale of the property without drawing up of final decree amounts to an irregularity and not an illegality. On this aspect, the First Appellate Court has observed thus :-
"still in my view passing of sale orders after confirming the report of the Commissioner without passing of final decree may be an irregularity but not the illegality by itself. Only formulated of passing and drawing of final decree was remained."
::48:: SA.147__148.2021._Judgment--.doc 53] As per the explanation to the meaning of the word decree as per Section 2(2) of the Code :- Decree is final when adjudication completely disposses of the suit. It is preliminary when further proceedings have to be taken. The aim of filing a suit for partition is to get the property coming to his share as per personal law. When there is a suit for partition, there are two important steps. One is the declaration of the share of the parties and second is a division of the property as per the shares ascertained and it is called as "partition by metes and bounds". It is true that only a decree can be put to execution when the judgment debtor has failed to act as per the directions in the decree. When a preliminary decree is passed, the shares are ascertained only. After that, it needs to be decided which part of the property will go to whose share. Because this will give a clear idea to the parties litigating about which properties they will be getting as per their individual shares. Many a times, it happens that the process of "determining which part of the property will go to whose share" it may overlap with the process of getting actual possession of the property allotted to the share of the individual.
54] As in the present appeals, we are concerned with the partition of house, there is no question of issuing precept to the Collector. So, the job has to be done under the supervision of the ::49:: SA.147__148.2021._Judgment--.doc Executing Court. I have read the prayers made in the final decree proceeding Nos. 09/2003 and 10/2003. The prayer says "final decree may kindly be drawn by appointing of Court Commissioner in respect of the immovable property described in Scheduled-I, II and III". There is a further request for direction for taking accounts of the partnership firm. There is also a prayer for the partition of movable property in the form of Car and four trucks. The procedure to be followed depends upon the nature of the property.
55] When the Commissioner is appointed by invoking powers under Order XXVI Rule 13 of the Code, the Commissioner is expected to ascertain whether the property can be divided as per the shares declared in the preliminary decree. In this case, the Commissioner has reported that the property is impartible. If the question is otherwise i.e. to say property is partiable, the Commissioner ought to have said that this share goes to a particular sharer. If such a report could have been submitted, the Executing Court could have passed an order as contemplated in different modes under Order XXVI Rule 14 (3). Those provisions also empowers the Executing Court to pass a decree in terms of his decision on the report of the Court Commissioner. This decree can nothing but a final decree. The emphasis of learned Senior Advocate Shri Bhangde is on the decision of the Executing Court to pass a decree. Unless and until, such passing of decree is ordered, ::50:: SA.147__148.2021._Judgment--.doc according to him, no sale can be ordered. When the observations in the judgments relied upon by both sides on this issue are perused, the following principles emerge :-
a) The final decree proceedings are mere continuation of preliminary decree proceedings and there is no executable decree unless final decree proceedings are finally disposed of.
b) A final decree has to specify the division by metes and bounds and has to be engrossed on requisite stamp papers and then it becomes executable. Until the rights in the final decree proceedings are worked out qua and till a final decree in that behalf is made there is no formal expression of adjudication.
c) Drawing up a final decree and engrossing on stamp paper/together constitute a final decree.
d) A preliminary decree cannot be put to execution without drawing a final decree proceeding, the Court could not put the property on auction sale.
e) The order of sale pass in a partition suit is a final decree and this final decree is a final order of partition under Section 2 (15) of the Stamp Act.
f) The proceedings and steps for sale in terms of an order under Section 8 of the Partition Act will be steps in the execution of the final decree and would not be the steps ::51:: SA.147__148.2021._Judgment--.doc prior to the passing of the final decree.
CONCLUSION 56] In all the Judgments relied upon by learned Senior Advocate Shri Bhangde, there is emphasis on execution of final decree only (& not preliminary decree). There cannot be any dispute about this proposition of law. In those cases, there was preliminary decree drawn in respect of agricultural land. And then precept is sent to Collector. But even there is a practice of filing an application for drawing a final decree. Once partition is effected by Collector as per precept, there is no final decree drawn. What he does is to effect partition by metes and bonds and then send a report to Executing Court. Then Executing Court uses to draw a final decree. Now if an argument is advanced that, "let the final decree be drawn and then only Collector can effect partition, then no steps can be taken in the process of drawing up a final decree". Ultimately what are the intermediatory steps in between two stages of drawing preliminary decree and drawing final decree?
57] It is very well true that only a final decree can be put to execution so what is mean by final decree ? which acts comprises the act of drawing up final decree ? It is very well true as said above that if the house could have been partitioned then the Court Commissioner ::52:: SA.147__148.2021._Judgment--.doc ought to have given a report specifying portion of the house and it is allotted to which sharer. In that case, the Executing Court after hearing the parties could have passed a decree in terms of the report of the Court Commissioner. The Executing Court could have specified that a particular portion of the house is allotted to a particular sharer. The difficulty had arisen because as per the report of the Commissioner the house is impartible.
58] On this background if the report of the Commissioner about the sale of the property could have been accepted after following the procedure, what order could have been passed by the Executing Court ? In that eventuality, the Executing Court could have ordered for sale of the house in the light of the provisions of Section 2 of the Partition Act. The Executing Court could also have taken recourse to the other provisions of the Partition Act. So, if we compare these two contingencies [the contingency of the house being capable of partitioned and contingency of house incapable of being partitioned], we may find that the order to sale the property is certainly a step taken in the direction of passing of a final decree. Because after sale is conducted and it is confirmed, the question of distribution of sale proceeds only remains. Even the said act of distribution can also be considered as a step taken in the direction of passing the final decree.
::53:: SA.147__148.2021._Judgment--.doc 59] The provisions of section 8 of the Partition Act are very clear. It gives the status of a decree to an order passed under Sections 2, 3 or 4 of the Partition Act. The Legislature while enacting those provisions must be conscious of difficulty being faced if the house is considered as an impartible estate. The Court is supposed to consider these provisions. Under such circumstances, when the property is ordered to be sold, the order to sell property itself amounts to steps taken in passing a final decree.
Non-Verification Of The Applications 60] It is true that the application at Exhibit No.33 and Exhibit No. 47 were not verified as contemplated under the provisions of the Code of Civil Procedure, 1908. The First Appellant Court has observed that the provision of Order XXI Rule 66 (3) of the Code cannot be invoked in the present situation. When the litigant files an application for sale of property by quoting the provisions of Order XXI Rule 66 of the Code, it is their bounden duty to follow the procedure laid down therein. No such provision of verification does find a place in Section 2 of the Partition Act. However, this Court feels that verification of the application praying for sale of the property will be required. Because an important prayer is made. The act of verification also enhances its sanctity. Even the provisions of Order 6 Rule 15 insist upon verification ::54:: SA.147__148.2021._Judgment--.doc of the pleadings by the person who knows the details of the information. Even record shows that the applications are signed by the advocate and not even by the parties. It also shows a callous approach on the part of the decree holders. The First Appellate Court has not considered this issue in a proper perspective by considering the provisions of law.
61] For the above discussion, it is held that :-
a] Sale of the property by public auction by invoking the provisions of Partition Act is permissible.
b] The property cannot be sold by invoking the provisions of Order XXI Rule 64 of the Code.
c] An order of sale of property also amounts to a step in the direction of passing final decree.
d] Verification in support of applications praying for sale of property is required.
Hence, substantial question of law Nos. C, E, F and G are answered accordingly.
FINAL ORDER 62] In view of the above discussion, the impugned orders cannot be sustained in the eyes of law. The First Appellate Court has not commented anything about requirement of valuation of the property prior to sale. The First Appellate Court has not commented ::55:: SA.147__148.2021._Judgment--.doc upon the requirement of the satisfaction by the Executing Court prior to accepting the report of the Court Commissioner. It was not proper on the part of the Appellate Court to consider the lacuna as mere irregularity. It is true that "formal order that final decree be drawn" can be said to be an irregularity. But what is illegality is not following the provisions of Partition Act and specifically not valuing the property prior to ordering its sale. The lacunas can be said to be irregularity if they relates to minor issues which do not touches the substantive rights of litigating parties. The sale of property without valuation is certainly an illegality. Because it nowhere protects the interest of either of the parties in fetching the correct market value. It is true that Rules of Procedure are handmade of justice as held in case of the Rajendra Prasad Gupta as referred above. It is also true that a particular procedure is permitted for doing justice unless expressly prohibited and it is also true that procedure prohibited cannot be followed. Section 151 of the Code gives inherent power to the Court to do the justice between the parties. However, thus the said power cannot be exercised by giving go by to the existing procedure as per the law. It is also true that the Court should endeavor to give benefits of the decree to the parties as held in case of Satyawati as referred above. It is also true that in any endeavor to give benefits of the decree to a party, there should not be go bye to the procedure. This Court is inclined to set ::56:: SA.147__148.2021._Judgment--.doc aside the judgment impugned in these appeals and to set aside the two impugned orders passed by the Executing Court.
63] While doing that the Court can still regulate the dilatory tactics to be played by any of the parties by issuing guidelines and by fixing the framework. This Court is inclined to saddle the costs on the appellants of Rs.25,000/-. It is for the reason that inspite of knowledge of filing of the applications for sale, they have remained idle and after that the proceedings continue for three years from the First Appellate Court upto this Court. The apprehension of respondents that the appellants being in possession of the house are trying to protract the litigation has got some basis. One can also see that the suit was contested and the litigation was fought upto Hon'ble Supreme Court at the instance of appellant Girish as he alongwith his sons have claimed ownership over the property on the basis of Will but that claim has already been negatived. So, this Court is inclined to remand the matter with certain strict directions. Hence, following order is passed:-
ORDER
a) Second Appeal Nos. 147/2021 and 148/2021 are allowed.
b) The judgment dated 02nd July 2021 passed in R.C.A. Nos.
78/2020 and 79/2020 are set aside.
::57:: SA.147__148.2021._Judgment--.doc
c) The orders passed on 17th March 2018 on Exhibit 33 in F.D.P. No. 10/2003 and on Exhibit 47 in F.D.P. No. 09/2003 are set aside.
d) It is made clear that the report given by the Court Commissioner "that house is impartible" is not open for any more inquiry and it has become final.
e) The Executing Court is directed to hear all the parties as contemplated under the provisions of Order XXVI Rule 14 (2) of the Code of Civil Procedure on the point of further steps to be taken on the report of learned Court Commissioner dated 05th July 2006 tendered in Court on 13/10/2008 at Exhibit No. 44.
f) In that process any of the parties is at liberty to apply for sale of the property recommended as impartible estate by the Court Commissioner.
g) If any such application is filed, all the parties be heard and the said application be decided in the light of provisions of the Partition Act, 1893.
h) In that exercise any of the parties are at liberty to exhaust his option as contemplated under Section 3 of the Partition Act,1893.
i) It is made clear that the Executing Court if comes to the conclusion to sell impartible estate, then to fix the reserved ::58:: SA.147__148.2021._Judgment--.doc price as contemplated under Section 6 of the Partition Act,1893.
j) The Executing Court is at liberty to take the assistance of any valuer and also the valuation suggested by litigating parties to the litigation.
k) All the parties are directed to appear before the Executing Court on 04/02/2022 at 11.00 am.
l) The following time schedule is fixed for complying with the above said directions :-
i) Period of 60 days is fixed for taking final decision on the report of Court Commissioner.
ii) Within that period, the parties are at liberty to apply for sale of any of the impartible property including an option as contemplated under Section 3 of the Partition Act.
iii) The Executing Court to ascertain the amount of reserved bidding.
iv) Once the issue of sale of property is finalized, then to proceed further for finalization of sale & disbursal of sale proceeds as per their shares declared.
v) If parties are willing, then the Executing Court to ::59:: SA.147__148.2021._Judgment--.doc handover possession of suit house to the parties as per sale.
vi) The Executing Court to pass Final Decree thereafter so far as suit house is concerned.
vii) The above said direction as to time limit will be applicable from the date of appearance of the parties on 04/02/2022.
m) The Executing Court is at liberty to proceed with the matter even if any of the parties will not appear in spite of above directions.
n) It is made clear that executing court is at liberty to impose the minimum costs of Rs. 10,000/- if any of the parties will try to delay the matter.
o) The appellants in both the appeals are directed to pay the cost of Rs.25,000/- to the respondents (to be paid equally amongst them). The costs be paid within the period of 15 days from today.
In the light of above directions, both the appeals are disposed of.
(S.M. MODAK, J.)
vijay/
rkn
Digitally signed
by OMKAR
OMKAR SHIVAHAR
SHIVAHAR KUMBHAKARN
KUMBHAKARN Date: 2022.01.21
16:23:38 +0530