Karnataka High Court
Sri. B. V. Pramodha Kumar vs Sri. B. S. Jaivandas on 9 January, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 1930 OF 2023 (PAR)
BETWEEN:
1. SRI. B. V. PRAMODHA KUMAR
AGED ABOUT 82 YEARS,
S/O LATE VISHWARAM AMIN,
R/AT C/O T R SUBRAHMANI,
D.O NO. 16/1, 1ST FLOOR,
5TH CROSS, SUDHAMANAGAR,
BANGALORE - 560 027
2. SMT. VISHALAKSHI
AGED 79 YEARS,
D/O LATE VISHWARAM AMIN,
W/O RAGHU,
R/AT MANOJ NILAYA,
K.H.B. COLONY, OMBATTUKERE
ULLAL, MANGALORE - 575 001.
3. SMT. SHASHIKALA,
AGED 76 YEARS,
D/O LATE VISHWARAM AMIN,
W/O JAGNNATH V AMIN,
R/AT 90, AMBA NILAYA, 4TH B CROSS,
1ST MAIN ROAD, SOUNDARYA CENTRAL SCHOOL,
SHIDEDHALLI, BENGALURU - 560073
4. SRI. SHARATH KUMAR,
AGED 73 YEARS,
2
S/O LATE VISHWARAM AMIN,
R/AT D.NO. 10-159/8
BIDDEL HOUSE, PRASHANTH ROAD,
SHAKTHINAGAR POST,
MANGALORE - 575 016.
5. SRI VIJAYA KUMAR
AGED 67 YEARS,
S/O LATE VISHWARAM AMIN,
R/AT AITHAPPA KUTEERA, BOLAR FERRY ROAD,
MANGALORE - 575 001.
6. SMT. ANUPAMA
AGED 65 YEARS,
D/O LATE VISHWARAM AMIN,
R/AT D.NO. 1-125, DEVI ANUGRAHA,
GORIGUDDA ANGARA MAJAL
NEHARU ROAD, KANKANADY
MANGALORE - 575 002.
7. SRI VANARAJ,
AGED 62 YEARS,
S/O LATE VISHWARAM AMIN,
R/AT AITHAPPA KUTEERA, BOLAR FERRY ROAD,
MANGALORE - 575 001.
8. SRI NAGARAJ,
AGED 60 YEARS,
S/O LATE VISHWARAM AMIN,
R/AT D.NO. 1-30/17D
DEVI DAYA, KUTTADKA BOLLAGUDDE
KUTHADKHA BAJAL, MANGALORE - 575 027
...APPELLANTS
(BY SRI.SACHIN B S, ADVOCATE)
3
AND:
SRI. B. S. JAIVANDAS
SINCE DECEASED BY LRS
AGED ABOUT 74 YEARS
1. SRI DURGA PRASAD,
S/O LATE JAIVANDAS
2. SMT. SUJALA,
D/O LATE JAIVANDAS,
BOTH ARE R/AT HOUSE NO.2,
7TH CROSS, 11TH MAIN,
SRINIVAS LAYOUT, DEVARA CHIKKANA HALLI,
BENGALURU - 560068.
3. SMT. ANITHA,
D/O LATE JAIVANDAS,
R/AT PREETHAM SADANA,
NEAR SHAKTHI EXCELLENCE,
C/O SHIVAPPA (CLOTH MARCHANT)
JEPPU KUDUPADI,
MANGALURU, D.K. - 575 002.
4. SMT. SHARMILA,
D/O LATE B.S. JAIVANDAS,
W/O DHARMADAS,
R/AT 1ST BRIDGE MARNAMIKATTA,
MANGALURU - 575 001.
5. SMT. CHANDRAVATHI,
W/O LATE SANJEEVA AMIN,
ADULT, C/O M./S CHAMUNDESHWARI TRANSPORT,
SHOP NO.7, 3RD CROSS ROAD, SADRAPATRAPPA
ROAD, BENGALURU - 560002.
4
SMT. RAVIMATHI,
SINCE DEAD BY LRS
6. DR. SATHISH KUMAR AMARNATH
S/O LATE KASARGOD NARAYAN AMARNATH,
AND LATE MRS. RAVIMATHI,
AGED 68 YEARS,
R/AT NO.11, RAVI KRUPA SATHISH,
BHAVAN, 1ST CROSS, 8TH MAIN,
NEAR MOUNT CARMEL COLLEGE, VASANTH NAGAR,
BENGALURU - 560001.
7. SRI S.S. RAMDAS
S/O LATE SANJEEVA AMIN,
ADULT, R/AT SHILPA SCREENS
POINT PROCEEDING HOUSE NO.43,
8TH CROSS, SAMPANGIRAMNAGAR
BENGALURU - 560027
SMT. JALAJAKSHI,
SINCE DECEASED BY LRS
8. SMT. VEDAVATHI
W/O LATE RAGHAVENDRA
AGED 58 YEARS
9. SRI SHISHIR
S/O LATE RAGHAVENDRA
AGED 31 YEARS
10 . SMT. SHRUTHI
D/O LATE RAGHAVENDRA
AGED 29 YEARS
NO.8 TO 10 ARE R/AT D.NO. 2125(1)
RANJITH NILAYA, AADIMAYE ROAD,
JAPPINAMOGARU,
5
MANGALURU - 575 007.
11 . SRI. VASUDEVA
S/O LATE PADMANABHA AMIN
ADULT
12 . SRI HARIDAS
S/O LATE PADMANABHA AMIN
ADULT, C/O MR. JAGANNATHA V AMIN
5TH CROSS, 1ST MAIN, KAMALA NEHRU
EXTENSION, YESHWANTHPUR
BENGALURU - 560022.
13 . SMT. SUKHALATHA
ADULT,
D/O LATE PADMANABHA AMIN AND
SMT. JALAJAKSHI
NO.11 AND 13 ARE R/AT AITHAPPA KUTEERA
BOLAR FERRY ROAD,
MANGALORE - 575 002
14 . SMT. ASHALATHA
ADULT, D/O LATE PADMANABHA AMIN AND
SMT. JALAJAKSHI
C/O SHIVAPPA (CLOTH MERCHANT)
JEPPU KUDUPADI, MANGALORE
DAKSHINA KANNADA - 575 002
15 . SRI MANOJ KUMAR
S/O LATE PADMANABHA AMIN AND
ADULT, R/AT AITHAPPA KUTEERA
BOLAR FERRY ROAD,
MANGALORE - 575 002.
...RESPONDENTS
(BY SRI.AMARESH.M, ADVOCATE FOR C/R9;
6
R3, 4, 6, 8, 10, 11, 13 TO 15 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 07.10.2023
PASSED IN RA No.88/2022 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
MANGALURU, D.K, DISMISSING THE APPEAL AND
CONFIRMING THE ORDER DATED 22.07.2022 PASSED IN
FDP NO.16/2008 ON THE FILE OF THE I ADDITIONAL
CIVIL JUDGE AND JMFC, MANGALURU.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 08.01.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by
respondents 5 to 12 in the final decree proceedings,
who are assailing the decree passed by the FDP Court
in confirming the sale of suit schedule property in
favour of respondent No.14 and consequently, issuing
a sale certificate by collecting a proper stamp and
thereby granting Rs.1,17,083/- to the plaintiff out of
the sale consideration, in satisfaction of the
preliminary decree drawn in O.S.No.353/1992.
2. The facts leading to the case are as under:
Respondent No.1 namely B.S. Jaivandas filed a
suit for partition and separate possession in
O.S.No.353/1992. The said suit was decreed by the
Court granting 1/12th share to the plaintiff/first
respondent by judgment and decree dated 27.1.1996.
First respondent before this Court, who is no more,
initiated final decree proceedings in FDP.No.16/2008.
A Commissioner was appointed to report feasibility of
partition in terms of the preliminary decree drawn by
the Court. The Court commissioner on spot inspection
submitted a report indicating that partition is not
feasible. It is in this context, respondent No.14 filed
an application and an auction was held within the
family members and respondent No.14 alone
participated in the family auction and the upset price
was fixed at Rs.14,00,000/-. Respondent No.14 bid
the suit schedule property for a sum of Rs.14,05,000/-
and none of the other family members participated in
the auction. Therefore, respondent No.14 deposited
25% of the accepted bid amount before the
Commissioner and the remaining amount was
deposited before the Court.
3. The present appellants, who are
respondents in the final decree proceedings, filed writ
petition in W.P.No.51104/2014 questioning the
auction sale. This Court on examining the rival
contentions canvassed by both the parties was not
inclined to interfere with the order passed by the
Court below wherein auction sale was upheld by the
FDP Court. This Court dismissed the writ petition.
Paragraphs 7 to 10 of the said order would be
relevant, therefore, the same is culled out as under:
"7. A reading of order XXI Rule 90 Code of Civil
Procedure would go to show that for seeking
setting aside of the auction sale, the applicants,
or purchaser, or any other person entitled to
share in a rateable distribution of assets, or
whose interests are affected by the sale show that
there is some material irregularity or fraud in
conducting auction. Further sub-rule (2) of Rule
90 clearly mentions no sale shall be set aside on
the ground of irregularity or fraud in publishing or
conducting it unless, upon the facts proved, the
Court is satisfied that the applicant has sustained
substantial injury by reason of such irregularity or
fraud.
8. In the circumstances of the case, the applicants
who filed I.A.Nos.8, 10 and 11 though have
sought for setting aside of the auction sale have
not been able to show what was the irregularity
said to have been committed by the said
commissioner in putting decreetal property for
sale in an auction. As the commissioner report
which is produced with the writ petition as
Annexure-E clearly go show that attempts were
made by the court as well as auctioneer and
opportunities were given and also a perusal of the
material placed before this court would go to
show that auction was taken place in a procedure
known to law and with due intimation to parties in
accordance with law.
9. As already observed above sufficient
opportunities were given and petitioners along
with their counsels were present at the time of
auction. Therefore, when there is no alleged fraud
or irregularity shown by the applicants in the
applications in I.A. Nos.8, 10 and 11, the trial
court has rightly rejected those applications.
Subsequently, since trial court had no power to
filed by the applicants, it also rejected I.A. Nos.
13 and 15 filed by the applicants therein under
Section 151 Code of Civil Procedure, by its order
dated 13.10.2014.
10. Admittedly, the alleged sale has not reached
its finality. According to the learned counsel from
both sides, the court auction has not been taken
place since the applicants in I.A. Nos.8, 10 and 11
filed their applications under Order XXI Rule 90
read with Section 151 Code of Civil Procedure
immediately after auction sale. Further process
before confirming the sale and issuance of sale
certificate is yet to be undertaken by the FDP
court. In such an event, I do not find any
irregularity or error in the impugned orders
passed by the FDP court which are dated
06.09.2014 and 13.10.2014 warranting
interference at the hands of this court."
4. On examining the above said paragraphs, it
is clearly evident that this Court was not inclined to
accede to the arguments canvassed by the
respondents in the above said writ petition. The writ
petition was dismissed by recording a categorical
finding that no serious prejudice is caused to the
present appellants herein on account of auctioning of
the property.
5. The FDP Court while examining the
objections raised by the respondents has taken
cognizance of the order passed by this Court in
W.P.51104/2014. The appellants herein having
suffered an order at the hands of this Court again
raised objections and contended that the auction sale
dated 16.11.2013 is invalid and therefore, cannot be
confirmed as it contravenes Rules 138 and 139 of
Karnataka Civil Rules of Practice. The appellants
contended before the FDP Court that in terms of Rule
138, the final bid was to be accepted by the Court.
The appellants also contended that the mandatory
requirements of Rules 138 and 139 of Karnataka Civil
Rules of Practice are not adhered to while auctioning
the schedule property and therefore, the auction sale
being in contravention of Rule 138 is liable to be set
aside. The appellants also contended that Order XXI
Rule 85 clearly contemplates and stipulates 15 days'
time to make payment of full purchase money and
that the Commissioner lacks jurisdiction to extend the
time prescribed. The appellants therefore contended
that sale certificate cannot be issued and the auction
sale cannot be confirmed as it is found to be in
contravention of Rules 138 and 139 of the Karnataka
Civil Rules of Practice.
6. The FDP Court, on examining the
objections raised by the appellants herein however
was not inclined to accede to the said objections. The
Court below referring to the principles laid down by
this Court in the case of P.S. Ranganathan .vs.
Ammai N Irani1 was of the view that the question of
final bid would arise only when there are other
bidders. Admittedly, in the present case on hand, the
Court below found that there are no other bidders.
The Court below also referring to Section 7 of the
ILR 2000 KAR 840
Partition Act was of the view that the strict compliance
of Order XXI of CPC would not arise. The Court taking
cognizance of the fact that the suit is of the year 1992
and the fact that the appellants herein have not
contested the final decree proceedings and have not
come forward to purchase the suit schedule property
as it was found to be indivisible/impartible, over ruling
the objections, the FDP Court held that Rules 138 and
139 of Karnataka Civil Rules of Practice cannot be
strictly adhered to when the auction is within the
family. Over ruling the objections, the FDP Court
proceeded to draw the decree thereby confirming the
sale and consequently, sale certificate is issued by the
FDP Court.
7. The said decree was assailed in an appeal
in R.A.88/2022. The appellate Court has
independently examined the objections raised by the
appellants while contesting the auction sale. The
appellate Court having examined the material on
record and adverting to Section 7(B) of the Partition
Act was also of the view that the procedure
contemplated under Order XXI has to be followed only
by way of guidance as far as practicable and
therefore, the appellate Court was of the view that
Section 7 of the Partition Act would over ride the
provisions of Order XXI and therefore, appellate Court
was also not inclined to interfere with the decree
passed by the FDP Court. These concurrent
judgments are under challenge.
8. The learned counsel appearing for the
appellants reiterating the grounds urged in the appeal
memo as well as referring to the substantial questions
of law formulated in the appeal memo would
vehemently argue and contend that the sale certificate
issued by the Court below while drawing the final
decree runs contrary to the mandatory procedure
contemplated under Rules 138 and 139 of the
Karnataka Civil Rules of Practice. To buttress his
arguments, he has placed reliance on following
judgments:
" 1. Smt Rathnamma Vs A.V Sharadamma [1999
5 KarLJ 631]
2. K.P Krishnappa Vs B.Gangappa [1982 1 KarLJ
356]
3 . P.S.Ranganathan Vs Aimai N Irani [20000
ILR(Kar) 840].
4. Manjamma Vs S.N Suryanarayana Rao [1986 1
KarLJ 104].
5. Channabasappa Vs Nanjundappa [1986 0
ILR(Kar) 3536].
6. Annappa Reddy Vs S Suresh [1994 4 KarLJ
510].
7. W.P No. 45608-45609/2013(GM-CPC)
Nayeemunissa Vs P.Prathap."
9. Per contra, learned counsel appearing for
respondent No.14 however supporting the reasons
assigned by the Courts below would point out that the
validity or otherwise of the auction sale conducted by
the FDP Court through Commissioner is upheld by this
Court in W.P.No.51104/2014. Referring to the
findings recorded by this Court at Paragraphs 7 to 9,
he would point out that appellants cannot be
permitted to re-agitate the questions that were
already answered by the FDP Court and confirmed by
this Court in W.P.No.51104/2014.
10. Heard the learned counsel for the
appellants and the learned counsel appearing for
respondents. I have given my anxious consideration
to the findings recorded by both the Courts below and
I have also given anxious consideration to the
judgments cited by both the Courts below.
11. Before I advert to the questions raised in
the captioned second appeal, I deem it fit to refer to
the principles laid down by this Court in a reported
judgment rendered in W.P.12119/2022 (Rajasekhar
Andanuru @ R.B.Andanur and others Vs.
A.Mohan and others). Paragraphs 15 and 16 of the
said order would be relevant, which is culled out as
under:
"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.
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 or shares to the
shareholder who offers to pay the highest price."
12. If the observations made by this Court in
an identical case coupled with the findings recorded by
the Co-Ordinate Bench in W.P.51104/2014, which are
culled out supra are taken into consideration, then I
am of the view that the captioned second appeal filed
by the appellants questioning the decree accepting
the bid and issuing sale certificate is found to be
totally misconceived. Admittedly, the first respondent
who is no more, instituted a suit for partition way
back in 1992. The parties are litigating since 1992. It
is borne out from the records that the present
appellants have not contested the final decree
proceedings. On receipt of feasibility report from the
Commissioner, it is Respondent No.14, who came
forward to purchase the suit schedule property and
accordingly, filed an application expressing his
intention to buy the shares of other family members.
Strangely, the appellants have not participated and
filed an application seeking leave of the Court to buy
the shares of other family members. On instructions
and directions issued by the FDP Court, the
Commissioner has conducted the auction at the spot
and Respondent No.14 having quoted the bid at
Rs.14,05,000/- deposited 25% of the bid amount with
the Commissioner while the balance bid amount was
deposited by Respondent No.14 on 11.12.2013.
13. This Court was not inclined to accede to the
contentions raised by the appellants herein
questioning the auction sale. This Court declined to
interfere with the order confirming the auction sale of
the suit schedule property as there was no irregularity
or fraud and the auction was with due intimation to
parties and in accordance with law. The said order
has attained finality. Now, the appellants are
questioning the validity of the auction sale and
consequent issuance of the sale certificate on the
ground that the auction sale and acceptance of bid
runs contrary to Rules 138 and 139 of the Karnataka
Civil Rules of Practice. As rightly held by the Courts
below, the principles governing Order XXI of CPC
cannot be strictly applied to the auctions conducted
under Section 7 of the Partition Act. When an auction
is sought to be achieved under Section 7 of the
Partition Act, the strict riguor and procedure
contemplated under Order XXI may not be strictly
followed. When a co-sharer proposes to purchase the
shares of other family members, it goes without
saying that he has a pre-existing right and therefore,
the strict procedure contemplated under Order XXI
cannot be extended and applied to the auctions
conducted within the family and that too when an
auction is sought by invoking the provisions of the
Partition Act. The intent of legislature to bring in a
partition act was to see that a joint family property is
not lost to a stranger more particularly, when a co-
sharer is willing to buy the share of other co-sharers
and is able to retain the ancestral property by paying
money to other co-shares. The above two culled out
paragraphs supra clearly indicate that this Court while
examining the rights of joint family members
participating in a family auction, that too when an
auction is held under Partition Act, which presupposes
that the sale is not by a public auction and is confined
only to co-sharers, strict adherence to the procedure
and Rules contemplated under Order XXI may not be
followed.
14. The provisions of Order XXI of CPC
contemplates procedural laws and deals with
enforcement of decrees. Therefore, if the auctions
are conducted by the Courts while enforcing the
decree under Order XXI of CPC, the procedure
contemplated therein needs to be mandatorily
followed. The Partition Act on the other hand, is a
specific legislation governing the partition of joint
family ancestral properties. Therefore, the Partition
Act deals with division of joint family properties
among co-parceners or tenants in common. The Act
does not primarily involve auctions but focuses on
equitable division of property among joint family
members. In summary, while both CPC and Partition
Act may involve legal processes, the auctions
conducted under the provisions of Order XXI of CPC
are generally related to execution of decrees, whereas
the Partition Act governs the division of joint family
properties among co-owners without primary focus on
auctions. Therefore, the procedure contemplated
under Order XXI of CPC is not strictly applicable to the
family auction conducted by a final decree Court by
invoking the provisions of the Partition Act.
15. The fact that appellants are now contesting
the decree only gives an indication that they want to
protract and deny the plaintiff from enjoying the fruits
of the preliminary decree. Having found that the
property is impartiable, plaintiff has not objected for
auction within the family. Plaintiff has not questioned
the auction sale and has also not questioned the sale
certificate issued by the FDP Court and consequent
final decree drawn in that regard. If the appellants
have failed to contest the proceedings and have failed
to participate in the family auction, this Court is of the
view that no serious prejudice is caused to the
appellants herein. The contention of the appellants
that the final decree contravenes Rules 138 and 139
of the Karnataka Civil Rules of practice also cannot be
acceded to in the light of the conclusions recorded by
this Court in the preceding paragraphs. Therefore,
this Court is of the view that no substantial question
of law arises for consideration.
The second appeal is devoid of merits and
accordingly, stands dismissed.
Sd/-
JUDGE
*alb/-
