Karnataka High Court
Nayeemunissa vs P. Prathap on 27 June, 2014
Author: Mohan .M.Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
Writ Petition Nos.45608-45609/2013(GM-CPC)
BETWEEN:
1. Nayeemunissa
Aged about 58 years
W/o Chand Pasha
No.317, II Main Road
Fort, Kolar-563101
2. Nayeemunissa
W/o Shabbir Ahmed
Door No. 1093, Fort, Kolar-563101
..Petitioners
(By Sri Padmanabha Mahale, Senior Counsel for
Sri G. Papi Reddy, Adv.,)
AND :
P. Prathap
Aged about 75 years
S/o Prama Khasim
No.10, Fort, Kolar-563101 .. Respondent
(By Sri H.C. Sundaresh, Adv., for Sri S. Visweswaraiah,
Adv.,)
2
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India praying to quash the order
dated 16.9.2013 passed by the Court of the Principal Civil
Judge, Kolar on I.A. XVI and I.A. XVII in FDP 8 of 1994
vide Annexure-N.
These Writ Petitions having been heard and reserved
for orders, coming on for pronouncement of order this day,
the Court made the following :
ORDER
The common order dated 16.9.2013 passed on I.A. Nos.16, 17 and 18 in F.D.P. No.8/1994 is called in question in these writ petitions.
2. The petitioners herein are Respondent Nos.8 and 6 respectively in Final Decree Proceedings before the Court below. They have filed I.A. No.16 before the Court below under Section 151 of Code of Civil Procedure ('CPC' for short) praying permission to pay the value of share of the respondent herein (petitioner in FDP) in monetary terms as per the valuation of the suit schedule property finalized for 3 the auction; I.A. No.17 is filed by the respondent herein (petitioner in FDP) under Section 151 of CPC seeking extension of time to deposit the balance of the auction sale amount.
3. The records reveal that the respondent herein filed O.S. No.344/1981 for partition and separate possession. The suit came to be dismissed. The unsuccessful plaintiff preferred R.A. No.70/1987 which came to be allowed holding that the plaintiff is entitled to 1/21st share in the suit schedule property. The said Judgment and Decree in R.A. No.70/1987 has attained finality. Pursuant to the said decree, the plaintiff initiated Final Decree Proceedings for demarcation of the shares by metes and bounds and for delivery of actual physical possession. The objections were filed by some of the respondents in the FDP and ultimately after making enquiry, the Court below appointed the Commissioner for proposing partition in terms of the 4 preliminary decree. The Commissioner after executing the warrant submitted the report observing that the property cannot be divided by metes and bounds. Considering the said report, the Court below passed the order dated 20.1.2004 holding that the suit schedule property cannot be divided by metes and bounds and the only course which can be adopted by the parties is to sell the property to the highest bidder among the parties and apportion the sale proceeds. The Court below in other words held that the actual partition of the suit schedule property by metes and bounds is not feasible and possible. Thereafter the Court below appointed the Executive Engineer, Kolar to value the suit schedule property, who estimated the approximate value as Rs.42,40,567/- by his report dated 21.8.2012.
It is relevant to note that none of the parties chose to buy the shares of other sharers at that point of time. Therefore after receipt of the report pertaining to the 5 market value of the schedule property, sale proclamation was issued by the Court below by fixing the auction among the sharers on 12.2.2013 by its order dated 4.2.2013. Accordingly, the Court Commissioner conducted the spot sale on 12.2.2013 among the parties to the suit and in the auction, the plaintiff/respondent herein had offered the highest bid of Rs.47,10,000/- for the entire suit property. The same has been accepted by the Court below. Immediately thereafter the auction purchaser/plaintiff paid Rs.12,00,000/- towards payment of 25% of sale consideration. The Court below directed the auction purchaser/plaintiff to pay the balance 75% of the sale consideration within 15 days. Subsequent thereto, I.A. Nos.16, 17 and 18 were filed, which were heard and disposed of by the common order by rejecting I.A. Nos.16 and 18 filed by the petitioners herein and allowing I.A. No.17 filed by the respondent herein (plaintiff - auction 6 purchaser) and consequently time to pay the balance of sale consideration is extended for further period of 15 days.
The unsuccessful Respondent Nos.6 and 8 in the FDP have approached this Court by filing these writ petitions.
4. Sri Padmanabha Mahale, learned senior advocate appearing on behalf of the petitioners submits that the Court below is not justified in rejecting the prayer of the petitioners relating to purchase of the plaintiff's share by them; the plaintiff has got only 1/21st share in the suit schedule property and therefore the Court below ought to have permitted the petitioners to purchase the share of the decree holder/auction purchaser; the petitioners have purchased the property during the pendency of the suit and have constructed the building; they are residing with their family members in the said building; since the petitioners herein did not know about the valuation report of the Engineer, they were not able to file the application before 7 the Court below praying for purchase of the share of the auction purchaser (plaintiff). It is further submitted by him that the Court below is not justified in extending the time in favour of the auction purchaser for depositing the balance of 75% of the sale consideration inasmuch as it is mandatory on the part of the auction purchaser to deposit the balance of the sale consideration within 15 days as per Order XXI Rule 84 of CPC. According to him, no option is left to the Court for extension of time fixed by the statute.
The writ petition is opposed by Sri H.C. Sundaresh, learned advocate appearing on behalf of the respondent/ auction purchaser by contending that the report was filed by the Engineer before the Court below and on the said basis the auction was conducted by the Court below among the parties to the suit; the impugned order clearly reveals that though the petitioners herein as well as their advocates were present in the morning session of the Court, they 8 deliberately remained absent in the afternoon session of the Court while the auction was conducted and therefore it is not open for the petitioners to contend that they did not have the knowledge of either the valuation report or the auction proceedings. The valuation report is filed before Court below on 21-8-2012, whereas auction was ordered only on 4-2-2013 i.e., after the lapse of about six months. It is further submitted that the auction is conducted as per the provisions of the Partition Act, 1893 ('Partition Act' for short) and not as per the provisions of CPC and therefore the Court below is justified in extending the time relying upon the judgment of this Court in the case of VALLI UBEIDULLA .vs. VALLI MUSTAFA AND OTHERS reported in ILR 2001 Kar 5279.
5. Before proceeding further, it is relevant to note certain admitted facts, more particularly to know the conduct of the petitioners.
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Suit came to be filed on 13.10.1981 for partition and separate possession by the respondent herein and another. The trial Court passed the exparte order of Temporary Injunction restraining the defendants in the suit from alienating the property on the very day i.e., 13.10.1981. Despite such an order of injunction, the original defendant No.1 sold the suit property in favour of defendants 6 to 8 on 17.10.1981. Subsequently defendants 6 to 8 were also arrayed as parties to the suit and the suit proceeded accordingly. As aforementioned, the decree came to be passed for partition and separate possession in R.A. NO.70/1987. Thus it is clear that the petitioners herein who are defendants 6 and 8 are the purchasers pendente lite. While deciding R.A. No.70/1987, the first appellate Court observed thus:
"... Further after filing of the suit dated 13.10.81 1st defendant sold the site 1/3rd each to defendants 6 to 8. The lower court also 10 restrained the defendant alienating and putting up any construction. Prior to that there was a legal notice of 1st defendant not to alienate the suit property. Paper publication was also issued by the plaintiff. Inspite of these aspects that too during the pendency of the case, defendants 6 to 8 purchased the property from the 1st defendant. 1st defendant also put the property in possession of defendants 6 to 8 they also got changed the Khatha and also erected buildings. This itself become unwarranted act of defendants which resulted in holding that the doctrine of lis pendens is do applicable as such the conclusion of lower court as per Section 52 of Transfer of Property Act is not applicable, erroneous and it requires interference. Thereby I hold the act of defendants is hit by doctrine of lis pendens under Section 52 of Transfer of Property Act. "
(emphases supplied)
6. It is also relevant to note that the defendants 6 to 8 not only purchased the property from the 1st defendant 11 but also started putting up construction over the suit property. At that point of time, another application came to be filed by the plaintiff restraining the defendants 6 to 8 from constructing the building. Unfortunately the said application came to be dismissed by the trial Court on 10.11.1982. Thereafter defendants 6 to 8 completed the construction.
Be that as it may, it is needless to observe that any construction made during the subsistence of the suit would be subject to the result of the suit. Therefore even the order of rejection of application for Temporary Injunction restraining construction should not affect the case of the plaintiff. Defendants 6 to 8 have taken the risk of construction of the building knowing full well that they have purchased the property during the pendency of the suit (that too while restraint order was subsisting) and that the construction over such property would be subject to the 12 result of the suit. Therefore it is not open for the defendants 6 to 8 now to contend that they may be given opportunity to purchase the share of the plaintiff and plead equity based on such purchase & construction made.
7. At an earlier point of time, the petitioners herein approached this Court in Writ Petition No.10273/2010 questioning the auction notification dated 15.3.2010 issued for auctioning the property in question in public. While allowing the said writ petition on 30.8.2010, this Court has observed thus:
"The order passed by the Trial Court on 20.1.2004 had remained unchallenged. Noticing the said fact, CRP 497/07 was allowed and it was directed that the Trial Court should regulate the matter in terms of its order passed on 20.01.04. The impugned order and the notification as at Annexure-L dated 15.3.10, are in violation of the said orders. Hence, the same is unsustainable.13
In the result, the writ petition stands allowed.
The impugned order dated 10.3.10 and the consequential auction Notification dated 15.3.10 stand hereby quashed. The Trial Court is directed to proceed in the matter by keeping in view the order passed in CRP 497/07 and its own order dated 20.01.04.
Thus it is clear from the aforementioned observations that the order of the trial Court dated 20.01.2004 has remained unquestioned. The trial Court by the said order dated 20.1.2004 had ordered for auctioning the suit property among the parties and the highest bidder was permitted to take the property and the money realized therefrom was ordered to be distributed among all the sharers including the parties to the writ petition. Hence in my considered opinion, the Court below is justified in auctioning the property among the parties to the suit, more 14 particularly when none of the parties came forward to purchase the remaining shares of other parties.
8. As is clear from paragraph-12 of the impugned order, the Executive Engineer was appointed by the Court below to value the property and he valued the suit schedule property at Rs.42,40,567/- by his report dated 21.8.2012. Thereafter the sale proclamation was issued by the Court below fixing the auction among the sharers on 12.2.2013, which means that all the parties including the petitioners had got the opportunity to make a prayer before the Court below for purchasing the share of the plaintiff. However no such application came to be filed by the petitioners till the auction was conducted. It is needless to observe that the petitioners herein participated in the proceeding of the Court below till 12.2.2013 i.e., till the auction was conducted. However at the time of the auction, the petitioners remained absent. Since there was no prayer 15 from anybody muchless from the petitioners regarding purchase of the plaintiff's share based on the valuation made by the Executive Engineer appointed by the Court below, the Court below auctioned the property among the sharers on 12.2.2013 and in the said auction, the plaintiff/respondent herein offered the highest bid of Rs.47,10,000/- and the same has been accepted by the Court below. Immediately thereafter, the auction purchaser (plaintiff) deposited 25% of the bid amount and he was given 15 days time to pay the balance 75% of the sale consideration. Only thereafter I.A. Nos.16 and 18 are filed by the petitioners praying the Court below for permission to purchase the share of the plaintiff. Since the auction is already concluded and the plaintiff is the highest bidder, it is not open for the trial Court to put the clock back by granting permission to the petitioners to purchase the share of the plaintiff inasmuch as plaintiff had already 16 by then purchased the entire property and deposited the initial amount of 25% of the sale consideration.
9. To consider the next argument of the learned counsel for the petitioners that the Court below has no jurisdiction to extend the time to pay the remaining balance of 75% of the amount, the following facts are necessary:
The Court below passed the order on 4.2.2013 , which reads thus:
"The auction of suit schedule properties will be conducted on 12.2.2013 in the open Court at 1.00 p.m. The initial bid amount for auction of katha No.323 of schedule property is Rs.15,42,895/-, Rs.13,54,984/- for katha No.324 and Rs.13,42,688/- for katha No.325. The successful bidder shall deposit 25% of bid amount immediately in the office.17
The parties are directed to participate in the auction of schedule properties on 12.2.2013. Office is also directed to notify the same in the notice board"
From the aforementioned, it is clear that all the parties were directed to participate in the auction of the suit schedule properties on 12.2.2013. It is also made clear that the successful bidder shall deposit 25% of the bid amount immediately in the office. Curiously nothing is mentioned in the said order as to when the successful bidder should deposit remaining 75% of the auction amount. All the parties accepted the aforementioned terms of auction which was published as far back as on 4.2.2013 itself. The auction was scheduled to be conducted on 12.2.2013. Accordingly, the auction came to be conducted on 12.2.2013 in which the plaintiff had offered the highest bid of Rs.47,10,000/- (in respect of all the three khatha numbers). After accepting the bid of the 18 plaintiff on 12.2.2013, the highest bidder was directed to pay the remaining amount of 75% within 15 days therefrom. Thus it is clear that there was no stipulation in the auction conditions that the remaining 75% was to be paid by the successful bidder within 15 days from the date of auction. It seems, such time was fixed by the Court below, after completion of auction, on 12.2.2013 as per the provisions of Order XXI Rule-84 of CPC. In that regard, the respondent's counsel argues that the provisions of Order XXI Rules 84 and 85 of CPC may not be applicable to the auction conducted by the Court below, but the provisions of the Partition Act are applicable.
10. The impugned order clarifies that the petitioners herein did not file objections to I.A. No.17 filed by the respondent seeking extension of time. In the absence of any objections raised by the petitioners, the trial Court extended the time by relying upon the Judgment of this 19 Court in the case of VALLI UBEIDULLA .vs. VALLI MUSTAFA AND OTHERS reported in ILR 2001 KAR 5279 wherein it is held if the Court sale is in execution of a decree under the provisions of CPC, the time frame fixed for paying the sale consideration has to be strictly adhered to; But if it is a sale under Section 3 of the Partition Act, the Court has discretion to extend time for payment when the other parties consent for extension of time.
11. Section 2 of the Partition Act testifies that the same would be applicable to a decree for partition which is passed in the suit instituted prior to commencement of the Partition Act. Thus primafacie it appears that Section 2 of the Partition Act is not applicable to the matter on hand inasmuch as the suit in the present case was instituted in the year 1981.
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Section 3 of the Partition Act is inter-related to Section-2 of the said Act inasmuch as it states that the same would be applicable in case the Court is requested under Section 2 to direct a sale. Since Section 2 itself may not be applicable, automatically Section-3 cannot be pressed into service. Section-6 of the Partition Act makes it further clear that every sale made under Section-2 of the Act shall be subject to a reserved bidding and the amount of such bidding shall be fixed by the Court. Thus it is clear that Sections 2,3 and 6 of the Partition Act are applicable in respect of a decree passed in a suit which is instituted prior to the commencement of the Partition Act.
Section 7 of the Partition Act deals with the procedure to be followed in case of sales. Sub-section (a) of Section 7 is not applicable to Karnataka State, the said sub-section is applicable to the decrees passed by the High Court of Calcutta, Madras or Bombay in exercise of their 21 original jurisdiction. However sub-section (b) of Section 7 of the Partition Act clarifies that if the property to be sold under a decree or order of any other Court, except the High Court Calcutta, Madras or Bombay, such procedure as the particular High Court may from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in the CPC shall be made applicable in respect of sales in execution of decrees. Undisputedly the High Court of Karnataka has not framed rules relating to procedure to be followed for selling the property in execution of the decree. Thus the procedure prescribed under CPC in respect of sales in execution of such decrees is applicable.
Firstly, it appears that the provisions of the Partition Act, as aforementioned cannot be taken benefit of by the auction purchaser in the matter on hand inasmuch as Sections 2,3 and 6 of the Partition Act are relating to the 22 decrees passed in the suit instituted prior to the commencement of the Partition Act. In view of the same, primafacie it is clear that the auction sale in question was not ordered under the provisions of the Partition Act. Moreover since the High Court of Karnataka has not framed the rules relating to the procedure to be followed in respect of the sale of the properties while executing the decree, the procedure as prescribed under CPC has to be adopted. Even otherwise if the provisions of the Partition Act are not applicable, the provisions of CPC automatically apply.
12. The relevant procedure for selling the property in execution of the decree is prescribed under Order XXI Rules 84, 85 and 86 of CPC. Under Order XXI Rule 84 of CPC 25% of the amount of purchase money shall be deposited by the auction purchaser forthwith subject to set off of the purchase money under Order XXI Rule 72 of CPC. Under Order XXI Rule 85, the remaining amount of purchase 23 money (i.e., the full amount of purchase money) shall be paid by the purchaser into the Court before the closure of the 15th day from the sale of the property. Thus it is mandatory on the part of the purchaser to pay and deposit the entire sale consideration within 15 days of the auction purchase. No discretion is left to the Court for extending time. Order XXI Rule 86 specifies that in case of default of payment within the period mentioned supra, the Court may forfeit the amount deposited to the State Government and the property shall be resold.
13. In the matter on hand, though the auction purchaser/respondent/plaintiff has deposited the initial amount of 25% immediately after the auction, has not chosen to deposit the balance of 75% within 15 days from the date of auction. On the other hand he has filed an application for extension of time. Such application seeking extension of time was allowed and consequently the time to 24 deposit the balance of amount is extended by the impugned order dated 16.9.2013. In view of the fact that the procedure as prescribed under CPC has to be followed and as the procedure under the provisions of the Partition Act need not be followed in this matter, the Court below did not have jurisdiction to extend the time beyond 15 days from the date of auction in favour of the auction purchaser, for depositing the entire amount.
14. Since, on facts this Court finds that the auction sale is governed by the procedure contemplated under the provisions of CPC i.e., Order XXI Rules 84, 85 and 86 of CPC, the Judgment of this Court in the case of VALLI UBEIDULLA .vs. VALLI MUSTAFA reported in ILR 2001 KAR 5279 is not applicable to the facts of this case.
In view of the above, the impugned order of the trial Court dated 16.9.2013 allowing I.A. No.17 filed by the 25 respondent/plaintiff seeking extension of time to deposit the balance of the sale consideration is liable to be quashed and accordingly the same stands quashed. Consequently the Court below is directed to proceed to auction the property afresh among the sharers as per the order of the trial Court dated 20.1.2004 and as per the procedure prescribed by law.
However the impugned order of the trial Court dated 16.9.2013 on I.A. No.16 filed by the petitioners herein is just and proper and therefore such portion of the order is not interfered with.
Writ Petition are allowed in part accordingly.
Sd/-
JUDGE Gss/-