Ram Krishan Gupta Thr. L.Rs.. vs Rani Gupta and Others

Manmohan Singh, J.—A preliminary decree was passed on 23.03.2006 in the above said suit for partition directing the property bearing No. C-11, Green Park Extension, New Delhi-110016, to be shared equally between the two branches of late Shri Murari Lal Gupta and Late Shri Girdhari Lal Gupta. Mrs. Indrani Ghosh, Advocate was appointed as a Local Commissioner to examine the partition of the property by metes and bounds in accordance with the shares of the parties.

The Local Commissioner filed her report on 21.04.2006 stating in para No. 11 that the property in question cannot be partitioned by metes and bounds.

In the meanwhile, defendant No. 3, i.e. Bhagwan Krishan Gupta had challenged the order of the preliminary decree dated 23.03.2006 by filing an appeal bearing FAO (OS) No. 268/2006 which was dismissed by the Division Bench vide order dated 23.05.2006. The said order of the Division Bench was challenged by defendant No. 3 in the Supreme Court by filing a SLP bearing No. 12350 of 2006. The said SLP was allowed and the matter was remanded back to the Division Bench who again by an extensive order dated 20.12.2007 dismissed the appeal of defendant No. 3. The said order was again challenged by defendant No. 3 by filing a Civil Appeal bearing No. 1186 of 2009 before the Supreme Court which was dismissed on 25.02.2009. Thereafter, the defendant No. 3 filed a review petition which was also dismissed. Later on defendants No. 2 & 3 filed the objections to the report of the Local Commissioner after the expiry of more than three years. It is pertinent to mention here that when the matter was listed before the Court for further proceedings, all the parties except defendant No. 3 were agreeable that the suit property be sold by public auction and the sale proceeds be divided in the shares in terms of preliminary decree passed on 23.3.2006. The defendant No. 3 in fact only challenged the report of Local Commissioner. As there was no force in the objection filed by the defendant No. 3, the final decree was passed by order dated 15.12.2009.

The operative portion as mentioned in paragraph-16 of the said order reads as under:-

Accordingly, final decree is passed. The suit property be sold by public auction and sale proceeds be divided in the shares mentioned in the preliminary decree. Mr. Tanuj Khurana, Adv. (Mobile No. 9811009959, X-3, Civil Wing, Tis Hazari) is appointed as Local Commissioner and is directed to take necessary steps for inviting offers from the public for auctioning the suit premises. For the purpose of ascertaining the value of the suit property, the local commissioner shall be at liberty to engage a government approved valuer who will submit his report to the local commissioner. After the government approved valuer gives his report, the local commissioner shall fix the same as the basic price for inviting offers from the public for sale of the suit premises. He shall take all further steps in pursuance thereof by publishing a proclamation of sale in the newspaper and inviting bids in respect of the suit premises. The bids shall be accompanied by a token amount toward earnest money. After finalizing the highest bidder, a report shall be submitted by the local commissioner to the court.

It appears, after passing the order for final decree, the defendants have changed their stand and they raised the objection about the non- compliance of Section 2 and 3 of the Partition Act, 1893 before passing the said order. They filed the following petitions in support of their submissions :

(a) R.A. No. 6/2010, for review of judgment and final decree dated 15.12.2009 by defendant No. 2,

(b) R.A. No. 7/2010, for review of judgment and final decree dated 15.12.2009, by defendant No. 3

(c) R.A. No. 69/2010, for review of judgment and final decree dated 15.12.2009, by defendant No. 5 along with I.A. No. 1996/2010, for condonation of delay in filing the review application,

(d) I.A. No. 1993/2010, u/s 3 of the Partition Act, 1893 read with Section 151 CPC, by defendant No. 6,

(e) I.A. No. 1994/2010, u/s 3 of the Partition Act, 1893 read with Section 151 CPC, by defendants No. 7(a) to (f)

(f) I.A. No. 1995/2010, for ad-interim ex parte stay, by defendant No. 5,

(g) I.A. No. 1992/2010, under Sections 2, 3 & 6 of the Partition Act, 1893 read with Section 151 CPC, by defendants No. 1A & 1B,

(h) I.A. No. 844/2010, for ad-interim ex parte stay, by defendant No. 3.

The main contention in all the review applications is that there is an error in the said order, as the compliance of Sections 2 & 3 of the Partition Act, 1893 was not made while passing the order of the final decree and the same has been overlooked and not considered by the Court.

Admittedly in terms of Section 2 of the Act, the sale of the suit property and the distribution of sale proceeds may be directed to be made only if the Court comes to the conclusion that a division of the suit property cannot reasonably or conveniently be made. The Scheme of Sections 2 & 3 of the Act, therefore, provides that upon request being made by the shareholders u/s 2, other shareholder(s) can apply for leave to buy at valuation determined by the Court.

Section 3 of the Act deals with the situation, where a property is directed to sale or any shareholders applies to buy at a valuation of the share of shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained.

For the reasons mentioned above, I feel that the order dated 15.12.2009 for passing the final decree deserves to be reviewed on account of there being an error appeared on the face of the record. Thus, the same is recalled. As far as objections filed by the defendants 2 and 3 are concerned, the same are rejected.

Accordingly, Mr. Tanuj Khurana, Advocate (Mobile No. 9811009959, X-3, Civil Wing, Tis Hazari), is appointed as Local Commissioner with the direction that he would reserve the bidding price between the shareholders after ascertaining the true value of the property from the qualified valuer to be appointed by him and sell the suit property to the higher bidder between the shareholders after obtaining the permission of the court. The fee of Local Commissioner, is fixed at Rs. 60,000/- excluding other expenses. The fee of the valuer will be borne by the parties in equal proportion.

All the pending review petitions, pending applications and objections are disposed of.

The Local Commissioner shall submit his report before this Court on or before the next date.

List on 15.03.2012.