Karnataka High Court
Rajasekhar Andanuru @ R. B. Andanur vs A. Mohan on 19 July, 2022
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.12119 OF 2022 (GM-CPC)
BETWEEN:
1. RAJASEKHAR ANDANURU @ R.B. ANDANUR
S/O LATE ANDANURU BASAPPA
AGED ABOUT 54 YEARS
OCC: MERCHANT
R/O 2ND MAIN, AKKAMAHADEVI ROAD
P J EXTENSION, DAVANAGERE-577002
2. ANDANURU MALLINATH
S/O LATE ANDANURU BASAPPA
AGED ABOUT 52 YEARS
OCC: MERCHANT
R/O 2ND MAIN, AKKAMAHADEVI ROAD
P J EXTENSION, DAVANAGERE-577002
3. SMT. GEETHA GANGADHARA
W/O GANGADHARA
AGED ABOUT 50 YEARS
R/O 2ND MAIN, 7TH CROSS
MCC B-BLOCK, NEAR SWIMMING POOL
DAVANAGERE-577004
...PETITIONERS
(BY SRI.PATIL JAGADEESH GOUD, ADVOCATE)
2
AND:
1. A. MOHAN
S/O ANDANURU BASAPPA
AGED ABOUT 56 YEARS
R/O AKKAMAHADEVI ROAD, 2ND MAIN
P J EXTENSION, DAVANAGERE-577002
2. ANDANURU KOTRABASAPPA
S/O LATE ANDANURU BASAPPA
AGED ABOUT 69 YEARS
R/O P J EXTENSION, DAVANAGERE-577002
3. SMT RUMINI
W/O LATE MALLASHETTEPPA ANDANURU
@ M B ANDANURU
AGED ABOUT 54 YEARS
OCC: COFFEE PLANTAR
RAYAL KOPPA, MAGGE ESTATE,
POST MAGGE, ALURU TALUK
HASSAN DISTRICT-573213
4. CHANNABASAPPA ANDANURU @ C B ANDANURU
S/O LATE ANDANURU BASAPPA
AGED ABOUT 62 YEARS
OCC: MERCHANT, 2ND MAIN
AKKAMAHADEVI ROAD, P J EXTENSION
DAVANAGERE-577002
5. ANDANURU DAYANAND
S/O LATE ANDANURU BASAPPA
2ND MAIN, AKKAMAHADEVI ROAD,
P.J. EXTENSION, DAVANAGERE
6. SMT SHAKUNTHALA
W/O LATE YEMMI BASAVARAJAPPA
@ JAYANNA
AGED ABOUT 56 YEARS,
R/O 6TH CROSS, SI RR
3
R/O DAVANAGERE-577002
7. A KOTRABASAPPA
S/O LATE BASAPPA
AGED ABOUT 69 YEARS
8. A CHANNABASAPPA
S/O LATE ANDANURU BASAPPA
AGED ABOUT 62 YEARS
RESPONDENT 7-8 ARE
R/O NO.20, 2ND MAIN, AKKAMAHADEVI ROAD
P J EXTENSION, DAVANAGERE-577002
9. SMT A RUDRAMMA
W/O LATE A DAYANAND
AGED ABOUT 46 YEARS
10. A D SANDEEP
S/O LATE A DAYANAND
AGED ABOUT 22 YEARS
11. A D BEENA
S/O LATE A DAYANAND
AGED ABOUT 20 YEARS,
RESPONDENT NO 9-11 ARE
R/O NO.20, 2ND MAIN, AKKAMAHADEVI ROAD
P J EXTENSION, DAVANAGERE-577002
12. RAJASEKHAR A
S/O LATE ANDANURU BASAPPA
AGED ABOUT 54 YEARS
13. A MALLINATH
S/O LATE ANDANURU BASAPPA
AGED ABOUT 52 YEARS
4
RESPONDENT NO.12 & 13 ARE R/O NO.20,
2ND MAIN, AKKAMAHADEVI ROAD
P J EXTENSION, DAVANAGERE-577002
14. SMT RUKMINI
W/O LATE A MALLASHETTAPPA
AGED ABOUT 54 YEARS
15. SUSHEETHA
D/O LATE A MALLASHETTAPPA
AGED ABOUT 27 YEARS
RESPONDENT NO.14 & 15 ARE
R/O ROYAL KOPPA
RAYAL KOPPA, MAGGE ESTATE,
POST MAGGE, ALURU TALUK
HASSAN DISTRICT-573213
...RESPONDENTS
(BY SRI NISHANTH A.V., ADVOCATE FOR C/R15)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DT.10.06.2022 PASSED BY THE LEARNED 1ST ADDL.SR.CIVIL
JUDGE AND JMFC AT DAVANGERE ON IA NO.15, 16 AND 17 AT
ANNEXURE-M IN F.D.P.NO.02/2008 AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 07.07.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The captioned writ petition arises out of final decree proceedings pending in FDP No.2/2008 on I.A.Nos.15, 16 and
17. The present petitioners are arrayed as respondent Nos.1(f), 1(g) and 1(h) in the pending final decree proceedings.
2. The Coordinate Bench of this Court in Civil Revision Petition No.383/2015 directed the final decree Court to draw final decree by bringing in suit schedule property for sale as contemplated under law. The respondent Nos.9 to 11 before this Court who are arrayed as defendant Nos.4(a) to 4(c) filed application in I.A.No.12 under Section 2 read with Section 8 of the Partition Act, 1893 (for short 'the Act of 1893') requesting the Court to sell the suit schedule property by way of auction and distribute the proceeds. The said application was allowed by the final decree Court by order dated 23.11.2021 and the Court called upon the parties to submit their written willingness to bid the property under court auction in terms of 6 Section 3 of the Act of 1893. The respondent No.1 who is the petitioner in FDP Court, respondent Nos.4 and 5 who are arrayed as respondent Nos.1(c) and 1(d) respectively, husband of respondent No.9 namely Dayanand who was arrayed as respondent No.4 and present respondent No.15 who is arrayed as defendant No.8 expressed their willingness to participate in the bid.
3. The matter was adjourned on three occasions to enable the present petitioners an opportunity to participate in the proceedings. The present petitioners did not submit their willingness to purchase the property under the bid. On 13.12.2021, court auction was conducted and bid was held in court premises between 4.00 p.m. to 5.00 p.m. In terms of court auction held on 14.12.2021, the above said respondents participated in the auction bid and the present respondent No.15 was declared to be the successful bidder. The FDP Court directed the respondent No.15 to deposit the bid amount by 17.01.2022. The respondent No.15 filed a memo 7 along with Demand Drafts bearing Nos.172109 and 172110 dated 14.01.2022 and deposited Rs.1 Crore each. Thereafter respondent No.15 filed I.A.No.15 seeking extension of time to deposit remaining sale consideration. The respondent No.15 subsequently has deposited the entire amount.
4. The petitioners contended that respondent No.15 has not deposited the bid amount as per the provisions of Order 21 Rules 84 and 85 of CPC and therefore, sought for setting aside the bid and order for resale. The petitioners relied on judgment rendered by this Court in the case of Harnath Rao vs. Parvathamma and Others1 and also judgment in Mudragada Suryanarayanamurthi vs. Southern Agencies, Rajahmundry2. The said contention was countered by respondent No.15 by specifically contending that the auction is held in terms of Section 3 of the Act of 1893 and therefore, the provisions of Order 21 Rule 84 of CPC are not applicable. The respondent No.15 also placed reliance 1 ILR 1998 Kar 3974 2 AIR 1962 AP 271 8 on the judgment rendered by the Andhra Pradesh High Court reported in AIR 1989 AP 320.
5. The learned Judge, however, declined to entertain the objections raised by the petitioners herein. The contention of the petitioners that they were not aware of auction sale till 14.12.2021 was not accepted by the FDP Court. The FDP Court was of the view that if petitioners had come to know about the auction sale on 14.12.2021, nothing prevented petitioners from seeking advancement of the matter. It is in this background, FDP Court declined to entertain the objections having regard to the fact that bid amount is huge and since respondent No.15 has deposited the entire bid amount in the Court, the FDP Court was of the view that the Partition Act does not prescribe any time limit for deposit of bid amount. The FDP Court was also of the view that the amount was deposited within reasonable time. Therefore, applying the principles laid down by the Andhra Pradesh High Court in the judgment cited supra, the learned Judge 9 proceeded to allow the application filed in I.A.No.15 by respondent No.15 seeking extension of time. Consequently, application filed in I.A.No.16 under the provisions of Order 21 Rules 89 and 90 and I.A.No.17 under Order 21 Rules 84 and 85 by the present petitioners herein were rejected. It is these common orders which are questioned before this Court.
6. This matter was heard on 29.06.2022 and was adjourned on 01.07.2022. On 01.07.2022, learned counsel appearing for the petitioners submits that the entire auction process is tainted with malafides and the property is sold at a very meager price and the same has caused serious prejudice to the valuable rights of the petitioner herein. It is in this background, learned counsel for the petitioners submitted his willingness to deposit the bid amount proportionate to the share of respondent No.15 to demonstrate his bonafides. Therefore, the matter was adjourned to 05.07.2022. On 05.07.2022, the petitioners failed to comply with the direction of this Court.
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7. At this juncture, learned counsel for the respondent No.15 brought to the notice of this Court that respondent No.15 has deposited a sum of Rs.12,28,50,000/- before the Court below. The grievance of respondent No.15 before this Court is that mere bald allegations are made by the petitioners that they are willing to purchase the suit schedule property at a higher rate than what was quoted by respondent No.15. Learned counsel for respondent No.15 submits that petitioners are trying to drag on the matter. Referring to the affidavit dated 27.04.2022, learned counsel for respondent No.15 brought to the notice of this Court that in the affidavit filed by the petitioners, petitioners have claimed that the prevailing market value of the suit schedule property is Rs.18,000/- per square feet. This Court having found that there is some force in the submission made by the learned counsel for the respondent No.15, as a final indulgence, granted one more opportunity to the petitioners and adjourned this matter to 07.07.2022 with a direction to the petitioners to tentatively 11 quote the market value of the suit schedule property in terms of their affidavit dated 27.04.2022. On 07.07.2022, a request was made to pass over the matter to 2.30 p.m. At 2.30 p.m., counsel for the petitioners has again sought time.
8. The Court Commissioner held auction in the court premises on 14.12.2021. Respondent No.15 being the highest bidder has deposited the entire bid amount of Rs.12,28,50,000/-. The main contention of the petitioners is that they were not heard and they were not aware of the auction conducted by the Court. The second ground of attack is that the property is sold at a meager price. The petitioners in the present writ petition at para 4 of the ground have taken a contention that on the date of auction i.e., 14.12.2021, the petitioners were very much present and requested the Court to permit them to participate in the auction. Their grievance is that process nazar declined to grant permission to the petitioners to participate in the court auction. The petitioners main ground of objection is that respondent No.15 has failed 12 to deposit 25% of the bid amount in terms of Order 21 Rules 84 and 85 of CPC and the remaining 75% is also not deposited within 15 days from the date of auction. The petitioners have contended that the FDP Court is not vested with discretion to extend time.
9. These contentions are countered by the learned counsel for the respondent No.15. Learned counsel for the respondent No.15 placing reliance on the judgment rendered by the High Court of Andhra Pradesh in the case of Baratam Satyanarayana vs. Baratam Kantharao and Others3 would contend that the provisions of Order 21 Rule 84 are not at all applicable to a auction conduced under Section 3 of the Act of 1893. Learned counsel would contend that on failure to deposit the bid amount, the Court is vested with jurisdiction to extend time to enable the successful bidder to deposit the amount towards the sale of shares of other shareholders. He 3 CRP.No.3002 of 1987 dtd: 29.11.1988 13 would contend that failure to deposit does not automatically require the property to be resold.
10. Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondent No.15. Perused the order under challenge. The following points would arise for consideration:
1) Whether the provisions of Order 21 Rule 84 of CPC are applicable to the auction conducted under Section 3 of the Partition Act, 1893?
2) Whether the petitioners have made out a case to set aside the auction on the ground that they were not afforded an opportunity to participate in the auction?
Re: Point No.1:
11. The present petitioners objection is that respondent No.15 has failed to deposit 25% of the bid amount as on the date of auction. Therefore, petitioners contend that it is mandatory to deposit 25% of the amount on the date of 14 auction and the successful bidder has to pay entire amount within 15 days from the date of auction i.e., 14.12.2021.
12. Learned counsel for respondent No.15 has placed reliance on the judgment rendered by the High Court of Andhra Pradesh in the case of Baratam Satyanarayana (supra). In an identical case, the High Court of Andhra Pradesh was of the view that in case of sale under Sections 3 and 4, the sale of shares of other shareholders in favour of shareholder applying for purchase is governed by self contained procedure under Sections 3 and 4 only and by such 'necessary or proper directions' as the Court may grant and not by the procedure in Section 7 which is directory in nature. The High Court in the above said judgment was of the view that the Court is vested with discretion to extend time for depositing the amount towards sale of shares of other shareholders without reference to provisions of Order 21 Rule 84 of CPC. Similar view is also taken by the Madras High 15 Court in the case of K.Vivekanandan vs. N.Vijayakumar4. The High Court of Madras was also of the view that the auction sale conducted under the provisions of Partition Act would not attract the procedure contemplated under Order 21 of CPC. The Madras High Court was of the view that these provisions have to be followed only as guidelines and that it is not mandatory. Similar view is also expressed by the Delhi High Court in the case of Krishan Kumar Mehra vs. Roop Lall Mehra and Others5. While dealing with identical case, the High Court of Delhi was also of the view that provisions of CPC would apply only as far as practicable. It further held that, in effect therefore, there is no strict application of the provisions of CPC as the Legislature was conscious of the fact that in partition suits, an auction could also involve one of the co- sharers or decree holders purchasing the suit property. The strict applicability of the provisions of Order 21 of CPC can thus be relaxed by the Court while exercising its discretion. 4 2014 SCC Online Mad 8478 5 2021 SCC Online Del 5491 16
13. The material on record clearly indicates that three co-sharers have applied for leave to buy and it is in this background, court has ordered for sale of the suit schedule property to the shareholder who offers to pay highest price. Therefore, in view of Section 3(2) of the Act of 1893, the court has proceeded to hold an auction among the co-sharers and sell it to co-sharers who offers to pay highest price. The Legislature has used the word "shareholder" which otherwise means and connotes a person who has a share in a property. The sale of joint property under Sections 2 and 3 of the Act of 1893 is different from a property sold in a public auction as per the provisions of CPC, where a condition for deposit and resale in case of default are provided. Therefore, when auction is conducted among co-sharers i.e., within the family members, the requisite deposit of 25% and thereafter the balance amount to be deposited within a period of 15 days cannot be made applicable insofar as in case of an auction conducted under the provisions of Partition Act. 17
14. The provision regarding deposit of 25% by the purchaser other than the decree holder is mandatory and non- compliance with it will make the sale a nullity. Therefore, this Court is of the view that the provisions of Order 21 Rules 84 and 85 of CPC would apply when there is a public sale of the property. Where property is sold under the provisions of the Partition Act, Rules do not apply and the court can extend the time for payment of deposit in exercise of its inherent powers. The strict compliance of the order 21 Rules 84 and 85 cannot be extended to the auction conducted under the provisions of Partition Act. The reason is that, where a stranger purchaser participates in a public auction, if the bid is accepted by the officer conducting sale is not accompanied by deposit of 25% of the purchase amount, it cannot be placed before the Court for formal acceptance and declaration of the purchaser. Another reason imposed for the requirement of initial deposit is immediately after bid is accepted, it safeguards against reckless and collusive bids. Therefore, the requisite initial 18 25% deposit is to ensure that the participant in a public auction demonstrate his bonafides. The initial deposit of 25% is only to see that the auction purchaser is really interested in purchasing the property put in auction which ultimately leads to satisfaction of the decree under execution proceedings. The strict compliance of order 21 cannot be applied to the co- sharers who have invoked the provisions of Partition Act.
15. Unlike a stranger purchaser in a public auction, a co-sharer himself has a pre-existing right in the suit schedule property. The parties are given an option to go for auction to see that the intrinsic value of the suit schedule property which is the subject matter of the partition suit does not get destroyed. Therefore, the intent of Legislature was to see that the joint family property is not lost to a stranger when one of the co-sharer who is willing to buy the share of other co- sharers and is able to retain the ancestral property by paying the money to the other co-sharers.
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16. The principle underlining Section 2 is that, partition cannot be allowed, if by such partition, the intrinsic value of the property sought to be partitioned would be destroyed. In such case, money compensation should be given in lieu of share to which a shareholder may be entitled. Therefore, if the sale is directed under the provisions of Section 2 of Partition Act, then it presupposes that the said sale is not by a public auction. In such event, it is to be presumed that sale is confined only to co-sharers and therefore, it is not warranted by the provisions of CPC. The present auction is conducted under Section 3 of the Act of 1893, therefore, the incidents of ancestral property, unity of possession have to be taken into consideration. Ordinarily, the incidents of joint property and the rights of co-sharers in the joint family property are given a right in terms of Section 3 of the Act of 1893. Therefore, when a co-sharer or co-sharers apply for leave to buy at a value the share or shares of other co-sharers, the Court proceeds under Section 3 of the Act of 1893 thereby ordering for sale of share 20 or shares to the shareholder who offers to pay the highest price.
Distinction between auction among joint family members and public auction under Partition Act
17. Even sub-rule (2) of Rule 84 of Order 21 CPC provides to dispense the requirement of deposit where a decree holder purchases in an auction with the leave of the Court. Therefore, the provision regarding deposit of 25% is only applicable to a purchaser in a public auction and the same is mandatory and non-compliance with it will make the sale a nullity. The second sub-rule (2) of Rule 84 clearly indicates that the said compliance is not applicable even to a decree holder who participates in a public auction with leave of the Court. Therefore, the strict compliance of initial deposit of 25% and balance deposit to be made within 15 days cannot be extended to the auctions conducted under the provisions of Partition Act. The very object of the Partition Act is to authorize a Court to divide the property and in some 21 exceptional cases where an equal division is not practicable, to award money compensation for the purpose of equalizing the value of the shares. Therefore, when the Courts are confronted with practical difficulties in dividing a property by metes and bounds, the Partition Act confers power on the Court to give effect to the preliminary decree. Therefore, the Court is not powerless to give effect to the preliminary decree and cannot be driven to all kinds of shifts and expedients.
18. The Partition Act supplies this defect in law by giving the Court, under proper safeguards, a discretional authority to direct a sale, where a partition cannot reasonably be made and the sale would, in the opinion of the Court, be more beneficial for the parties. Therefore, auction among joint family members under the provisions of Partition Act stand on a totally different footing. While giving effect to a preliminary decree, the Court is vested with jurisdiction and is bound to exercise discretion to extend time and enable the successful bidder who happens to be a family member to 22 deposit the amount. Such a discretion flows and is vested under the provisions of Partition Act. However, when a family member do not opt to purchase the property and in case Court is compelled to put the property to give effect to the preliminary decree by way of public auction, then it necessarily follows that the provisions of Order 21 are attracted and the consequences would follow insofar as purchaser is concerned. Therefore, if a stranger to the family who participates in a public auction and is declared as a successful bidder, consequences would follow and the provisions of Order 21 Rule 84 and 85 are applicable. A stranger purchaser cannot take the benefit of provisions of Partition Act. Therefore, the applicability or non-applicability of provisions of Order 21 depends upon the nature of auction conducted by the Court while giving effect to a preliminary decree in a partition suit. If the auction is only among family members, then strict compliance of the provisions of Order 21 is not required and they are only directory in nature. The 23 Court is always vested with discretion in the given facts and circumstances of the case to extend time to deposit the amount. However, the Court has to apply the principles of Order 21 where a stranger in a public auction even under the Partition Act is declared as a successful bidder and his bid is accepted. All necessary mandatory procedures have to be followed in such cases.
19. It is in this background, this Court is of the view that the provisions of Order 21 are held to be applicable to the auction conducted under the provisions of Section 3 of the Act of 1893 and they are to be deemed as directory and not mandatory. Therefore, the contention of the petitioners that the Court is not vested with discretion to extend time enabling respondent No.15 to deposit the balance amount cannot be acceded to. Respondent No.15 has deposited a sum of Rs.12,28,50,000/-. At this stage, if auction of the suit schedule property is set at naught, that would cause immense loss and prejudice to the rights of respondent No.15. 24 Therefore, point No.1 formulated by this Court is answered in the negative.
Re: Point No.2:
20. The petitioners' grievance is that they were never afforded an opportunity to participate in the auction. The petitioners contention is that they were not aware of the auction till 14.12.2021. The learned Judge has examined the order sheet and also the materials placed on record. This contention is rightly negatived by the FDP Court. The FDP Court was justified in holding that nothing prevented the present petitioners from filing appropriate application to the FDP Court by filing a memo seeking advancement of the matter. The respondent No.15 has deposited the sum of Rs.12,28,50,000/-. The conduct of the petitioners has to be meticulously examined not only in the pending final decree proceedings but also before this Court. The matter was listed on 29.06.2022 and it was adjourned to 01.07.2022 at the request of the petitioners. The petitioners voluntarily made a 25 submission that they are willing to deposit the bid amount proportionate to the share of respondent No.15. The matter was again adjourned to 05.07.2022. On 05.07.2022, this Court heard the matter on merits. The order sheet dated 05.07.2022 passed by this Court would be necessary which would reflect on the conduct of the petitioners and the same is culled out as under:
"This Court adjourned the matter with a direction to petitioners to deposit a sum of Rs.2.30 Crores towards share of respondent No.15.
Even today the petitioners' counsel has no instructions and there is no compliance of direction issued by this Court.
As a final indulgence, this matter is adjourned to 07.07.2022.
Respondent No.15 is a successful bidder and his bid for a sum of Rs.12,28,50,000/- is accepted. Prima facie this Court would find that the petitioner is intending to drag on the matter. If he wants to prove his bonafides, petitioner by next date shall quote his bid in terms of his affidavit dated 27.04.2022 filed along with accompanying application in I.A.No.16. At unnumbered last paragraph, the petitioner has stated 26 in unequivocal terms that the property fetches more than R.18,000/- per square feet. Therefore, by 07.07.2022, he shall quote his bid in terms of the statement made on oath.
List this matter on 07.07.2022."
21. Even on 07.07.2022, the petitioners have not shown any inclination either in quoting the bid amount or have deposited the proportionate share of respondent No.15. The respondent No.15 has deposited Rs.12,28,50,000/-.
22. The Courts approach involves expansion of conventional understanding of fairness so as to encompass not only fairness between the parties to the case, but also the need to deal with the case expeditiously and without disproportionate expense. The Court must consider whether it is in the interest of administration of justice the frivolous writ petition can be kept pending for consideration. This Court is also required to examine the petitioners conduct by reference to overall interest of justice. It is high time that this Court should not be unduly reluctant to dismiss the petitions where 27 it appears to the Court that litigant is determined to subvert the adjudicative process by dragging on the matter. The Court should be slow to make decisions more particularly those who set out to use the court process as an instrument to keep the litigation pending and thereby try to derive advantage. The petitioners have clearly demonstrated in the present case that their object is to prevent that the matter does not attain finality and they are merely not purporting to invoke their right to access to the Court but their real object to see that the lis is not put to rest once for all. Therefore, this Court can reasonably draw a conclusion that petitioners on bald allegations have tried to see that the bid process does not attain finality and they are not ready to accept the bid and by filing the present writ petition are actually seeking to abuse the process of law. Therefore, this Court is of the view that they have not made out a case and no grounds are forthcoming to set aside the auction on the ground that petitioners were not afforded any opportunity to participate in 28 the auction. The auction is concluded in the month of December, 2021 and we are in July, 2022. Till this date, petitioners have failed to quote their bid amount nor they are ready to deposit the amount proportionate to the share of respondent No.15 in terms of the preliminary decree i.e., 1/9th share out of the amount deposited of Rs.12,28,50,000/-. Therefore, no ground is made out. Accordingly, point No.2 is answered in the negative.
23. For the foregoing reasons, I pass the following:
ORDER The writ petition is dismissed.
Sd/-
JUDGE CA