IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.23856/2018(GM-CPC) BETWEEN:
B. SRIPADA RAO, S/O. LATE. KRISHNA SWAMY RAO, AGED ABOUT 66 YEARS, LALBAHADUR SHASTRINAGAR MAIN ROAD, SHIVAMOGGA 577 201.
... PETITIONER (BY SRI P. N. HARISH, ADVOCATE) AND:
1. CHAMPAKA W/O. NARAYANA KADAKKOL, MAJOR IN AGE, R/O. HOUSE NO. 46, ANUGRAHA 11TH MAIN, 27TH CROSS, BANASHANKARI II STAGE, BENGLAURU 560076 2. SATYAVATHI W/O. MURALIDHAR B, AGED ABOUT 58 YEARS, R/O. HARIKRUPA, 1ST CROSS, JAYANAGAR, SHIVAMOGGA 577 201.
3. B. NARASINGA RAO S/O. LATE. B KRISHNA SWAMY RAO, MAJOR IN AGE, R/O. 1ST CROSS, JAYANAGARA, SHIVAMOGGA 577 201 4. B. VADHIRAJA RAO S/O. LATE. B KRISHNA SWAMY RAO, MAJOR IN AGE, C/O. JAWAHARLAL NEHRU NATIONAL COLLEGE OF ENGINEERING, NAVULE, SHIVAMOGGA 577201 5. JAYASHREE W/O. GURURAJ, R/O. NO. 302, KOTE ROAD, DEVANAHALLI, BENGALURU RURAL DISTRICT-562110 6. MALATHI MAJOR IN AGE, W/O. B G S PRASAD, R/O. NO. 13, II B CROSS, VIDYAPEETA CIRCLE, T.R. NAGAR ROAD, BENGALURU 560028.
7. RAMA V. MURTHY, W/O. M. R. VISHNUMURTHY, MAJOR IN AGE, BEHIND NITHYANANDA MUTT, SIRSI, NORTH CANARA 581401 8. B SUMANA W/O. VENKATA RAMANI, MAJOR IN AGE, R/O. NO. 65, RAGHAVENDRA LAYOUT, II MAIN, III CROSS, PADMANABHANAGAR, BENGALURU 560070.
9. D S CHANDRIKA W/O.SRIPAD B N, MAJOR IN AGE, NO. A-007, A-BLOCK, GOLDEN PLAM APARTMENTS, NAGAPPA REDDY BADAVANE, KEGDASAPURA, BENGALURU 560093.
... RESPONDENTS (BY SRI M. C. NAGASHREE, ADVOCATE FOR R1; SMT. ANNAPURNA, ADVOCATE FOR SRI S.V. PRAKASH, ADVOCATE FOR R2 TO R4; R5 IS SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 23.08.2018 NOTICE TO R6 TO R9 IS DISPENSED WITH) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 09.03.2018 PASSED BY II ADDITIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA IN FDP NO.15/2011 PASSED AS PER ANNEXURE-E AND THEREBY DISMISS THE IA NO.13 AS PER ANNEXURE-C FILED IN FDP NO 15/2011 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner who is the respondent No.4 in the final decree proceedings, filed the present writ petition against the Order dated 09.03.2018 made in FDP No.15/2011 on the file of the II Addl. Senior Civil Judge, Shivamogga, allowing I.A.No.13 filed by the respondent No.1 herein. The Court below directed to sell the petition schedule property in public auction with liberty to both the parties to participate in the said auction proceedings.
2. The first respondent herein filed O.S.No.86/1996 for partition and separate possession in respect of house property. The suit came to be dismissed in the year 2006. On the appeal filed by the plaintiff in R.A.No.1/2007, the lower Appellate Court by the judgment and decree dated 13.01.2011, decreed the suit holding that the plaintiff and defendant Nos.1 to 11 are entitled 1/11th share in the suit schedule property. The said judgment and decree passed in R.A.No.1/2007 has reached finality. The decree holder filed FDP No.15/2011 to execute the decree.
3. During pendency of the final decree proceedings, the decree holder filed an application under Section 2 of the Partition Act, 1893 read with Section 151 of Code of Civil Procedure, seeking to order for sale of petition schedule /suit schedule property for sale instead of division among the share holders and distribute the proceeds, contending that, ‘the nature of the property itself depicts that it cannot be divided to the convenience of the parties. If the property is sold in public and the proceeds so got is apportioned in terms of the preliminary decree it will be beneficial to all the parties. The property may fetch `3 crores, if sold in public etc’. The application was opposed by the present petitioner by filing objections, contending that the application is not maintainable. It was contended that, unless there is a report of the Court Commissioner to the effect that the division is not possible, the property cannot be brought for sale. Therefore, sought to dismiss the application.
4. The Executing Court, considering the application and objections, by the impugned order dated 09.03.2018, allowed the application and ordered to sell the petition schedule property in public auction. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri P.N.Harish, learned counsel for the petitioner contended with vehemence that the impugned order passed by the Trial Court allowing the application filed by the decree holder under Section 2 of the Partition Act, 1893, ordering to sell the petition schedule property in public auction is erroneous and contrary to the material on record. Unless and until a report of the Court Commissioner is obtained by the Court to the effect that the division of the property is not possible, the property cannot be ordered to be sold in public auction. Without following the procedure contemplated under Sections 2, 3 and 6 of the Partition Act, 1893, and the Court cannot straight away order for sale of property in public auction. Therefore, he sought to allow the writ petition.
7. Per contra, Sri M.C.Nagashree, learned counsel for respondent No.1 sought to justify the impugned Order and contended that the Court taking into consideration that the suit schedule property is a house property measuring 60 feet x 80 feet, was of the considered opinion that allotting 1/11th share is not feasible and since the property is valued about `3 crores, ordered for auction sale, permitting the parties to participate in the said auction sale to enable them to get more benefit. Therefore, she sought to dismiss the writ petition.
8. Smt. Annapurna, learned counsel for Sri S.V.Prakash, learned counsel for respondent Nos.2 to 4 sought to support the contentions of the learned counsel for the petitioner.
9. Having heard the learned counsel for the parties, it is undisputed fact that original suit was filed by the plaintiff for partition which came to be dismissed in the year 2006. The appeal filed against the said judgment and decree came to be allowed, allotting 1/11th share to the plaintiff. The said decree has reached finality. It is also not in dispute that the decree holder filed FDP No. 15/2011. Since the nature of the house property depicts that it cannot be divided, an application came to be filed under Section 2 of the Partition Act. Though a specific objection was raised by the respondents therein that without there being a Commissioner report stating that the division is not possible, the property cannot be brought to public auction, the Trial Court proceeded to order for public auction mainly on the ground that the suit schedule property is a house property and nature of the property itself shows that it cannot be divided. Though the matter is of the year 2011, the respondents have not chosen to ascertain the share of the petitioner in terms of money. So, objection raised by them that the valuation of the petitioner’s share is not ascertained, cannot be accepted.
10. For the purpose of resolving the dispute between the parties, it is profitable to rely upon the provisions of Sections 2, 3 and 6 of the Partition Act, 1893, which reads as under:
2. Power to court to order sale instead of division in partition suits.— Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
3. Procedure when sharer undertakes to buy.— (1) If, in any case in which the court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or 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, and may give all necessary and proper directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as provided in sub- section (1), the court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
6. Reserved bidding and bidding by shareholders.— (1) Every sale under Section 2 shall be subject to a reserved bidding, and the amount of such bidding shall be fixed by the Court in such manner as it may think fit and may be varied from time to time.
(2) On any such sale any of the shareholders shall be at liberty to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase- money or any part thereof instead of paying the same as to the court may seem reasonable.
(3) If two or more persons, of whom one is a shareholder in the property, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder.
11. A plain reading of the said provisions make it clear that, in any suit for partition in which, instituted prior to the commencement of the Act, a decree for partition might have been made, and it appears to the court that, by reason of the nature of the property, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. Before such action is initiated, if the shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the court shall order a valuation of the share or shares and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf. Every sale under Section 2 shall be subject to a reserved bidding, and the amount of such bidding shall be fixed by the Court and may be varied from time to time. On such sale, the shareholders shall be at liberty to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase-money or any part thereof instead of paying the same as to the court may seem reasonable. If two or more persons, of whom one is a shareholder in the property, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder.
12. Admittedly, the Executing Court has not followed the procedure contemplated under Sections 2, 3 and 6 of the Partition Act, 1893. On that ground alone, the impugned order cannot be sustained.
13. For the reasons stated above, writ petition is allowed. The impugned Order dated 09.03.2018 made in FDP No.15/2011 on the file of the II Addl. Senior Civil Judge, Shivamogga, allowing I.A.No.13 filed by the respondent No.1 is hereby quashed. The matter is remanded to the Executing Court to reconsider the application and objections and pass orders, after following the procedure contemplated under Sections 2, 3 and 6 of the Partition Act, 1893, and strictly in accordance with law.
14. Since the suit is of the year 1996 and we are in 2019, the Trial Court is directed to expedite the FDP itself, subject to cooperation by both the parties.
Sd/- JUDGE kcm