Muni Naidu vs M.L. Mubarak Basha and Others

Govardhan, J.—This appeal arises out of the order passed by the learned Sub Judge, Thiruvannamalai, dated 13.10.1986 allowing the

application filed by the plaintiff-petitioner in I.A. No. 525 of 1983 in O.S. No. 69 of 1976 setting aside the sale held on 7.1.1983 and directing a

fresh sale to be effected by the Commissioner appointed for the said purpose.

The petitioner''s case is briefly as follows: In the suit filed by the plaintiff for partition and separate possession of his 16/64th share, a preliminary

decree has been passed. The second defendant filed an application for passing a final decree. Advocate Thiru P. Sivaraman was appointed as

Commissioner to divide the properties. As far as the 18th item of the properties is concerned, the Commissioner has stated in his report that it

cannot be divided since it is a sawmill. The second defendant filed an application for selling the property in auction among the sharers and prayed

for permission to bid at the auction. The said application was allowed. The second defendant was the highest bidder in respect of the said property

for a sum of Rs. 1,03,600. The property therefore should not have been brought for public sale subsequently. There was no proper publication of

the sale either through tom-tom or publicity in papers. Therefore, the plaintiff-petitioner could not participate in the auction. The sixth respondent

was the highest bidder for Rs. 95,200. The sale was finalised in his favour. Since the Commissioner demanded a sum of Rs. 5,000 as security from

the bidders there were no sufficient bidders. When the property had already been sold for Rs. 1,03,600 fixing the upset price as Rs. 70,000 by the

Commissioner is wrong. For all these drawbacks, the sale held on 7.1.1983 is liable to be set aside.

The sixth respondent filed a counter stating as follows: The auction was conducted by the Commissioner who was appointed by the Court. He

had given notice to the Advocates for the parties prior to the conduct of the sale. Tom-tom was also made in the village. Publication was also

made regarding the sale. Only on seeing the same, the sixth respondent participated in the auction. The allegation that the Commissioner has

demanded Rs. 5,000 as caution deposit is improper and is not correct since it has been made only to enable the actual intending purchaser to

participate in the auction. There is no irregularity committed in the auction held on 7.1.1983. Since the sixth respondent has purchased the property

in the auction, to drag on the proceedings, this application is filed and it is liable to be dismissed.

On the above pleadings, the learned Sub Judge held an enquiry and has held that the petition is maintainable in the form it was filed, that there

was proper publication by tom tom and publication in the papers, that notice was given to the parties to the suit through their counsels, that the

description of the property was also specific and clear, that the allegation that the property was sold for a lesser price is not tenable and all these

grounds have been decided against the petitioner. But the learned Sub Judge has further held that the auction-purchaser has not paid the necessary

amount for writing the sale certificate in stamp papers within 15 days from the date of auction and it is against the provisions of Order 21, Rule 85

of the CPC and on that ground alone, the sale is liable to be set aside and allowed the application as prayed for.

Aggrieved over the said order of the learned Sub Judge, the sixth respondent viz., the auction-purchaser has come forward with this appeal.

The only question that arises for consideration is therefore, whether the conclusion of the learned Sub Judge, that the sale is liable to be set aside

on account of the failure of the auction-purchaser to pay the necessary fees for purchasing stamp papers within 15 days from the auction, is valid

or not.

Before actually considering the question before us, it is expedient to recollect some facts of this case. The suit is one for partition and separate

possession of the plaintiffs 16/64th share. Subsequent to the passing of the preliminary decree, which has become final, a Commissioner has been

appointed by the court to divide the properties. The Commissioner has found that item No. 18 which is a saw mill could not be divided as per the

preliminary decree and submitted a report to that effect. On the said report, the second defendant filed an application for directing the

Commissioner to auction the property among the parties. The suit and sought permission to bid at the auction. The said application was allowed.

Writ the Commissioner conducted the sale, the second defendant''s bid for Rs. 1,03,600 was the highest and it was declared that he was the

successful bidder. But the sale has not been concluded in favour of the second defendant since he has failed to deposit the amount. It is only

subsequently the property has been brought for public sale. Therefore, the contention of the petitioner that the property should not have been

brought for public sale after the second defendant was the successful bidder, has no merits at all. The Commissioner who has been examined as

P.W.3 has stated that as per the direction of the Court, he has fixed the sale of the property, and the upset price was also fixed at Rs. 70,000 and

the sixth respondent was the highest bidder, his bid being Rs. 95,200 and that he has paid the entire amount on the same date. The sale was one

ordered and conducted as per the Partition Act. The auction-purchaser has not deposited the necessary fee for purchasing the stamp papers. He

has therefore filed an application for extension of time in I.A. No. 228 of 1983. The learned Sub Judge, Thiruvannamalai, after hearing both sides,

has passed an order on 27.10.1983 and has held that rules relating to partition suits under the Partition Act and Civil Rules of Practice do not

prescribe any time limit for deposit of sale certificate charges and on that basis, the objection raised by the respondents viz., for extension of time,

has to be rejected and allowed the said application. In the said order dated 27.10.1983, the learned Sub Judge has also observed that this

question can also be raised in the petition to set aside the sale filed by the respondent. The learned Counsel appearing for the respondent would

therefore argue that the question whether extension could be granted is left open to be decided in this application and as per Order 21, Rule 85 of

Civil Procedure Code, there is no jurisdiction to extend the time for deposit of stamp charges and the order of the learned Sub Judge is well-

founded and does not call for any interference by this Court. The learned Counsel relies upon the decision reported in Mudragada

Suryanarayanamurthi Vs. Southern Agencies, Rajahmundry and Another, , in support of his above contention wherein it has been held that a sale

held in execution of a decree is a nullity and has to be set aside when the amounts mentioned in Order 21, Rule 85, Civil Procedure Code, are not

deposited in full before the court closed on the 15th day from the date of the sale of the property. The learned Counsel appearing for the appellant

would on the other hand argue that the provisions of Order 21 of CPC do not apply to sales under Partition Act and Section 7 of the Partition Act

recognises distinction between the sales under the Partition Act and sales in execution of decrees and that the procedure in respect of the latter is

to be adopted only as far as practicable and it would show that when a property is being brought for sale, even under the Partition Act as far as

possible the procedure provided under the Civil Rules of Practice has to be considered but it does not mean that it should be followed in the strict

sense. The learned Counsel relies upon the decision reported in The Official Receiver, Salem v. C.B. Samanthagam Ammal 1979 T.L.N.J. 354,

wherein our High Court has held the Partition Act itself has contemplated stipulation of certain special terms and conditions when sales are effected

under the Act and it cannot be contended only the provisions made under Order 21, Rules 84, 85 and 86 of CPC will alone be applicable to all

types of sales under the Partition Act and that the provisions made under Sections 6 and 7 of the Partition Act and the Rules framed by the High

Court go to show that all types of sales effected under the Partition Act cannot be governed by the provisions of the CPC and yet when the court

has granted time for depositing the amount being fully aware of the provisions of Order 21, Rule 85 of Civil Procedure Code, because it would not

be applicable to the facts and circumstances of the case and the sale held under Sections 2 and 3 of the Partition Act and that in that case, the

court has chosen to fix a period of three months and hence it has inherent jurisdiction to extend the time granted by it without being inhibited by

Order 21, Rule 85, CPC and hence the order made by the court below cannot be held as one made against the provisions of Order 21, Rule 85,

Civil Procedure Code. This decision of our High Court makes it clear, that in sales effected in pursuance of the Partition Act, Order 21, Rule 85 of

CPC cannot be invoked to set aside the sale on the ground that the court has granted time for paying the stamp charges.

The learned Counsel appearing for the appellant has also brought to the notice of this Court that as against the order passed by the learned Sub

Judge granting extension of time of pay the stamp charges, a revision has been preferred by the plaintiff to the High Court and in the said revision

viz., C .R.P. No. 393 of 1984, it has been held that the sale in this case has been held only under the provisions of the Partition Act and would

therefore be governed by Rule 9 of the Rules framed under the Partition Act and that it will be open to the court to give suitable directions

regarding payment of sale certificate charges and that there is no time-limit as such prescribed for payment of these charges and that the court

below was quite right in directing the issue of a challan for payment of sale certificate charges and that there is no illegality or irregularity in the

order of the court below and dismissed the civil revision petition on 8th September, 1988. The learned Counsel appearing for the appellant would

argue that when the civil revision petition preferred against the order passed by the learned Sub Judge extending the time for payment of stamp

charges has been dismissed, it is not open for the plaintiff-petitioner to contend that an irregularity has been committed in the conduct of the sale by

not following Order 21, Rule 85, Civil Procedure Code. The civil revision petition is between the appellant and the first respondent in this appeal.

The said civil revision petition has been dismissed upholding the order of the learned sub Judge extending the time for payment of stamp charges.

The said order passed in the revision is an order parties in this appeal and therefore, I am of opinion that the contention of the respondent

supporting the order passed by the learned Sub Judge allowing I.A. No. 525 of 1983 before him and setting aside the sale is not a tenable

contention. The order passed by the learned Sub Judge is on an erroneous approach of the provisions of Order 21, Rule 85, CPC without

considering that the sale was ordered in a partition suit by the court and therefore, the same is liable to be set aside. In that view, I hold that the

conclusion of the learned Sub Judge that the sale is liable to be set aside on account of the failure of the auction-purchaser to pay the necessary

fees for purchasing the stamp papers within 15 days from the auction, is not valid.

In the result, the appeal is al lowed setting aside the order passed by the learned Sub Judge, Thiruvannamalai. No costs.