Karnataka High Court
Sri. Yuvaraja vs Smt. Varadamma on 2 July, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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CRP No. 779 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
CIVIL REVISION PETITION NO. 779 OF 2023 (IO)
BETWEEN:
1. SRI.YUVARAJA,
S/O LATE DESAIAH,
AGED ABOUT 51 YEARS,
R/AT No.363, 2ND CROSS,
3RD MAIN, NANDINI LAYOUT,
VIJAYANANDANAGAR,
BANGALORE-560 096.
...PETITIONER
(BY SRI. THIMMAIAH.K.H., ADVOCATE)
AND:
1. SMT.VARADAMMA,
W/O LATE DESAIAH,
AGED ABOUT 70 YEARS,
SINCE DEAD,
Digitally PETITIONER AND R-2 AND R-3 ARE
signed by ALREADY ON RECORD AS LEGAL HEIRS.
KIRAN
KUMAR R
Location: 2. SMT. SUNDRAMMA,
HIGH
COURT OF D/O LATE DESAIAH,
KARNATAKA AGED ABOUT 49 YEARS,
3. SRI.GOPALAKRISHNA
S/O LATE DESAIAH,
AGED ABOUT 45 YEARS
R-1 TO R-3 ARE R/AT No.363,
2ND CROSS, 3RD MAIN,
NANDINI LAYOUT,
VIJAYANANDANAGAR,
BANGALORE-560 096.
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CRP No. 779 of 2023
4. SRI.B.RAVICHANDRAN,
S/O LATE BASAVANTHAPPA,
AGED ABOUT 47 YERS,
R/AT No.307, 3RD MAIN,
2ND CROSS, VIJAYANANDA NAGAR,
NANDINI LAYOUT,
BENGALURU-560 096.
...RESPONDENTS
(BY SRI. HARISH.D.K., ADVOCATE FOR R-1 & R-2;
SRI. ANIL SHEKAR, ADVOCATE FOR R-3;
SRI.H.K.SRIVASTHAVA, ADVOCATE FOR R-4)
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 26.10.2016 PASSED ON I.A.No.7
IN FDP No.50/2007 ON THE FILE OF XXV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE., ALLOWING THE IA
No.7 FILED UNDER ORDER 21 RULE 92 AND 94 READ WITH
SECTION 151 OF CPC.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.04.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. Smt. Varadamma (the petitioner's mother) and Smt.
Sundramma (the petitioner's sister) instituted a suit for
partition against the petitioner--Yuvaraja and his younger
brother--Gopalakrishna in respect of a house property
bearing No.363, measuring 30 X 17½ feet. The said suit
was decreed on 01.02.2007, as a result of which the
plaintiffs and the defendants were each granted 1/4th
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share and a preliminary decree was ordered to be drawn
up.
2. Thereafter, proceedings were initiated to draw up a
final decree and during the pendency of these
proceedings, Smt. Varadamma--the mother of the
petitioner passed away, and as a consequence, Yuvaraja,
his sister--Smt. Sundramma, his brother--Gopala Krishna
and himself became entitled to 1/4th share each.
3. In the final decree proceedings, a Court
Commissioner was appointed to partition the property, but
the Court Commissioner filed a memo stating that the
property could be partitioned, having regard to its extent.
In view of said report, the Court directed that the property
be auctioned.
4. After the Court directed that the property be sold in
auction, the petitioner filed an application under Sections 2
and 3 of the Partition Act, 1983 requesting the Court to
permit him to participate in the auction for purchasing the
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shares of his siblings and of his mother. This application
was, however, dismissed on merits and since this order
was not challenged, the same has attained finality.
5. The first auction was conducted on 24.05.2014
wherein the property was sold for a sum of Rs.26,50,000/-
.The auction purchaser did not deposit said amount and
the sale was not concluded.
6. The property was auctioned for the second time on
06.09.2014, and in this auction, the highest bid was for a
sum of Rs.17,00,000/- but, even in respect of this auction,
the auction price was not deposited and the sale could not
be concluded.
7. On 17.01.2015, the property was auctioned for the
third time and the 4th respondent herein was the highest
bidder for a sum of Rs.25,00,000/-, and this bid was also
accepted by the Court Commissioner.
8. The 4th respondent deposited said sum of
Rs.25,00,000/- in 5 installments on the following dates:
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SL. DATE PAYMENT
1. 17.01.2015 1st part installment paid at Rs.3,00,000
2. 20.01.2015 2nd part installment paid at Rs.3,50,000
3. 02.02.2015 3rd part installment paid at Rs.6,00,000
4. 12.02.2015 4th part installment paid at Rs.9,00,000
5. 19.02.2015 5th part installment paid at Rs.3,50,000
9. After the above deposits were made, the 4th
respondent filed an application for confirmation of the sale
and for issuance of the sale certificate. This application
was opposed by the petitioner, but the Trial Court by way
of the impugned order has allowed said application and,
while allowing the application, the Trial Court has taken
note of the fact that the petitioner had filed an application
seeking to exercise his option to purchase the property
and since the same was rejected, he could not question
the sale conducted.
10. As can be seen from the tabular column indicating
the payments made pursuant to the auction, it is clear
that as against the 25% of the auction amount which
ought to have been deposited (i.e., Rs.06,25,000/-), the
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4th respondent had only deposited a sum of Rs.3,00,000/-.
It is thus clear that proceedings pursuant to the auction
should not have been continued and the bid of the
petitioner ought to have been rejected and the property
was to be re-auctioned.
11. It may also be noticed here that the balance of the
bid amount, in view of Order XXI Rule 84 of the CPC, is
required to be deposited within 15 days from the date of
the auction. In this case, the 15th day from the date of the
auction (17.01.2015) would be 01.02.2015.
12. The 2nd installment of Rs.3,50,000/- was paid on
20.01.2015, which would mean that out of the auction
price of Rs.25,00,000/-, by the 15th day, only a sum of
Rs.6,50,000/- was deposited.
13. The 3rd, 4th and 5th installments of Rs.6,00,000/-,
Rs.9,00,000/- and Rs.3,50,000/- were paid only after the
15th day i.e., beyond the period of 15 days prescribed
under Order XXI Rule 85 of the CPC.
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14. The Supreme Court in the case of Sardara Singh1
has laid the down the law relating the time during which
the deposit is required to be made pursuant to a Court
sale, as follows:
"4. ...It is clear from the above observations that
this Court came to the conclusion that both the
initial deposit and the subsequent payment of the
purchase money within the time allowed are
mandatory under Rules 84 and 85 of Order XXI
CPC and the court is bound to re-sell the property
in the event of there being a default. This is how
this Court puts it: (SCR p. 115)
"These provisions leave no doubt that unless the
deposit and the payment are made as required by
the mandatory provisions of the rules, there is no
sale in the eye of law in favour of the defaulting
purchaser and no right to own and possess the
property accrues to him."
It is clear from this decision that the requirement of
deposit contained in Sections 85, 86 and 88 of the
Act, which are substantially the same as Order XXI
Rules 84 and 85 of the Code, are mandatory and
failure to comply with either of them renders the
sale non-est. Once the effect of non-payment of
Sardara Singh v. Sardara Singh, (1990) 4 SCC 90.
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the amount is to render the sale non-existent, it
becomes the imperative duty of the authority to re-
sell the property as the purchaser forfeits all claim
to the property for default of payment. Where there
is no sale in the eye of law, there can be no
question of applying for setting aside the sale on
the ground of material irregularity under Section 91
of the Act which is analogous to Order XXI Rule 90
of the Code. Non-payment of the balance amount
had the effect of rendering the entire sale null and
void. There can be no doubt that no right, title or
interest passed to the auction-purchasers under the
sale certificate of March 12, 1966. In fact,
technically speaking, in such cases, it may not be
necessary to have the sale set aside as in the eye
of law there is no sale whatsoever. The owner of
the land was, however, required to file a suit as
there was an imminent threat to dispossess him on
the strength of the sale certificate of March 12,
1966. To protect his possession he was compelled
to file the suit. Unfortunately, during the pendency
of his appeal he was dispossessed and, therefore,
he was required to amend the plaint and claim
possession also. The suit was, therefore, clearly de
hors the provisions of the Act and hence ordinarily
the civil court was entitled to hear and decide the
same."
(emphasis supplied)
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15. In view of this judgment rendered by the Apex Court,
it is clear that the non-deposit of the balance amount by
the auction purchaser in this case -- within 15 days --
would render the sale non est and there would not even be
a need to make an application to set aside the same.
16. As already noticed, in the instant case, even the
initial requirement of making the deposit of 25% of the
auction amount was not complied with and the subsequent
requirement of depositing the balance amount of 75%
within 15 days, both of which are held to be mandatory,
had not been complied with. This basically indicates that
the entire manner in which the sale was conducted and
concluded was contrary to the provisions of Order XXI
Rules 84 and 85 of the CPC.
17. It may be pertinent to state here that in this case,
this proposition was not argued, and the main argument of
the petitioner was that the reserve price had not been
fixed before the auction, and the auction was therefore
illegal. In this regard, it may be stated that the petitioner
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did not make an application for setting aside the sale and,
hence, this argument cannot be accepted when the
auction purchaser sought issuance of a sale certificate.
18. The matter was heard and thereafter reserved for
pronouncement of orders. At the time of preparing the
judgment, the aspect of non-deposit of entire auction sale
consideration was noticed and the matter was thus posted
for further hearing.
19. Learned counsel for the respondents contended that
the provisions of Order XXI Rule 84 of the CPC cannot be
applied to an auction conducted under the provisions of
Partition Act and it is only in respect of sales in execution
that the provisions of Order XXI Rule 84 of the CPC would
apply.
20. This argument, in my view, is untenable. Whenever a
property is ordered to be sold by way of an auction by a
Court, necessarily, the Court would have to follow the
principles laid down under Order XXI of the CPC. It does
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not matter whether the sale has been conducted under the
Partition Act or under any other enactment, and so long as
the auction is by the Court, the procedure prescribed
under Order XXI of the CPC would have to be followed.
21. The gross and incurable illegality of not depositing
the auction price within the statutorily prescribed timelines
were noticed when the records were perused, and a copy
of the memo filed by the auction purchaser was discovered
by this Court. Though the argument advanced by the
petitioner was on the aforementioned ground that the
reserve price as mandated under Section 2 of the Partition
Act had not been indicated, in my view, since the memo
indicating the dates on which the deposits were made
pursuant to the auction had rendered the very sale non
est, the impugned order is required to be set aside and it
is thus declared that the very auction sale is rendered void
by the non-deposit of the auction price within the time
frame provided under Order XXI Rules 84 and 85 of the
CPC.
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22. In the result, it is held that the auction conducted on
17.01.2015 is non est and the Trial Court is directed to re-
auction the property and ensure that the sale is conducted
in the manner contemplated under Section 2 of the
Partition Act, as well as in compliance with the provisions
of Order XXI regarding the sale of an immovable property.
23. The present petition is accordingly disposed of.
SD/-
JUDGE
GSR
