[Cites 27, Cited by 0]
Karnataka High Court
B. Krishnamurthy vs Sri. L. M. Kodandarama Shetty on 21 February, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 34919 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.34919 OF 2025 (GM-CPC)
BETWEEN:
1. B. KRISHNAMURTHY
S/O. LATE B.L. BETTAIAH SETTY,
AGED ABOUT 71 YEARS,
RESIDING AT #14,
VASAVI TEMPLE ROAD,
V.V. PURAM,
BENGALORU-560 004.
...PETITIONER
(BY SRI. S.M. DAYANAND PATIL, ADVOCATE)
AND:
Digitally
signed by 1. SRI. L.M. KODANDARAMA SHETTY
GEETHA P G S/O. LATE MUNIRAMAIAH SHETTY,
Location: AGED ABOUT 84 YEARS,
HIGH
COURT OF
KARNATAKA 2. SRI. LINGAIAH BABU L.K.
S/O. L.M. KODANDARAMA SHETTY,
AGED ABOUT 48 YEARS,
RESPONDENT NOS.1 AND 2 ARE
RESIDING AT NO.19/11
1ST 'D' MAIN, VASANTHAM
GIRINAGAR II PHASE
BNS 3RD STAGE
BENGALURU-560 085.
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3. SMT. SUMA K. NAGENDRA
D/O. L.M. KODANDARAMA SHETTY,
AGED ABOUT 50 YEARS,
RESIDING AT NO.440/21,
4TH MAIN ROAD, NEAR K.R. HOSPITAL,
NAGENDRA BLOCK,
BANASHANKARI,
3RD STAGE, BENGALURU-560 050.
4. SMT. NIRMALA
W/O. JAYAGOPAL,
AGED ABOUT 69 YEARS,
R/AT NO.51, 100 FEET RING ROAD,
VYSYA BANK, II COLONY,
BMT II STAGE, MICO LAYOUT.
5. SRI. K.N. NIRANJAN
S/O. LATE K. NARASIMHA,
AGED ABOUT 67 YEARS,
R/AT NO.43, FLAT NO.101,
III MAIN ROAD, PUTTENAHALLI,
J.P. NAGAR, 7TH PHASE,
BENGALURU-560 078.
6. SRI. K.N. MAHENDRA
S/O. LATE K. NARASIMHA,
AGED ABOUT 65 YEARS,
R/AT NO.86, II CROSS,
III BLOCK, NARAYANANAGAR,
DODDALASANDRA POST,
BENGALURU-560 062.
7. SMT. T.S. VIMALA
W/O. T.N. SUNDRANATH,
AGED ABOUT 58 YEARS,
R/AT NO.3518/A, "TUNGA",
4TH MAIN ROAD, 6TH CROSS,
M.C.C. 'B' BLOCK,
DAVANAGERE-577 004.
8. SMT. C.L. PRAMEELA @ PREMA
W/O. C. LAKSHMAIAH SETTY,
AGED ABOUT 73 YEARS,
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R/AT NO.11-4-29C,
RAMAR KOIL STREET, CHITTOOR,
ANDHRA PRADESH-517 001.
9. SRI. B. G. VIJAYALAKSHMI
W/O. B.K. GANGARAJ,
AGED ABOUT 67 YEARS,
R/AT NO.2701, 1ST FLOOR,
17TH 'C' CROSS, VTH MAIN ROAD,
BANASHANKARI II STAGE,
BENGALURU-560 070.
10. SMT. T. GAYATHRI
W/O. T. THAYAMMANAVAR,
AGED ABOUT 61 YEARS,
R/AT NO.487, 38TH CROSS,
JAYANAGAR, 8TH BLOCK,
BENGALURU-560 082.
11. SRI. B. NAGARAJA GUPTA
S/O. LATE B.L. BETTAIAH SETTY,
AGED ABOUT 77 YEARS,
R/AT NO.717, 17TH MAIN ROAD,
38TH CROSS, 4TH 'T' BLOCK,
JAYANAGAR,
BENGALURU-560 011.
12. SRI. B. LAKSHMANA GUPTA
S/O. LATE B.L. BETTAIAH SETTY,
AGED ABOUT 69 YEARS,
R/AT "VAISHNAVI", NO.1251/B,
23RD MAIN ROAD, 23RD CROSS,
B.S.K. II STAGE,
BENGALURU-560 070.
13. SRI. B. SRIDHAR MURTHY
S/O. LATE B.L. BETTAIAH SETTY,
AGED ABOUT 63 YEARS,
R/AT NO.52, C.T.B. ROAD,
2ND CROSS, K.R. ROAD,
2ND STAGE, BANASHANKARI,
BENGALURU-560 070.
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14. SRI. K. SEETHARAMAIH SETTY
S/O. K. ANANTHAPADMANABHAIAH,
AGED ABOUT 88 YEARS,
15. SRI. K.S. RAVIKUMAR
S/O. K. SEETHARAMAIAH SETTY,
AGED ABOUT 54 YEARS,
16. SMT. H.M. LAKSHMI
W/O. H. V. MANJUNATH,
AGED ABOUT 53 YEARS,
R/AT NO.386, ELLEMALAPPA ROAD,
BANGARPET-563 114.
17. SMT. K.S. VIDYA
D/O. K. SEETHARAMAIAH SETTY,
AGED ABOUT 48 YEARS,
RESPONDENT NOS.14, 15, 17 ARE
R/AT NO.126, 2ND CROSS,
1ST FLOOR, K.G. NAGAR MAIN ROAD,
BENGALURU-560 019.
...RESPONDENTS
(BY SRI. K.S. NAGARAJA RAO, ADVOCATE FOR C/R.1.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER PASSED BY THE LEARNED XXII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE IN CCH-7 AT BANGALORE IN FDP
NO.88/2006 VIDE ANNEXURE-A BY ORDERING FRESH PUBLIC
AUCTION OF PLAINT SCHEDULE B PROPERTY BY ALLOWING IA
NO.5 IN THE SAID PROCEEDINGS VIDE ANNEXURE-D, ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
1. This petition by respondent No.3 in FDP No.88/2006 on the
file of the XXII Additional City Civil and Sessions Judge, Bengaluru
is directed against the impugned order dated 04.07.2025 passed
on I.A.No.5, whereby, the said application- I.A.No.5 filed by the
petitioner under Section 151 of Code of Civil Procedure, 1908
(CPC) to recall the order dated 11.11.2011 directing public auction
of 'B' schedule property was rejected and to order fresh public
auction of the said property was rejected by the trial Court.
2. Heard learned counsel for the petitioner and learned counsel
for caveator-respondent No.1 and perused the material on record.
3. Learned counsel for the petitioner would invite my attention to
the material on record, in order to contend that the provisions
contained in Order XXI Rules 84 and 85 of the Code of Civil
Procedure, 1908 (CPC) had not been complied with by the auction
purchaser, who had not only failed to deposit 25% of the auction /
bid amount on the very same day, but had also not deposited the
balance 75% within a period of 15 days as contemplated in Order
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XXI Rules 84 and 85 of CPC and consequently, the said auction
and all further proceedings in pursuance thereof, were vitiated and
the same deserves to be set aside. It is submitted that though the
aforesaid order was passed on 11.11.2011, there were several
intervening proceedings and finally, the petitioner filed the instant
application, which was erroneously rejected by the trial Court by
passing the impugned order, which deserves to be set aside.
4. Per contra, learned counsel for the caveator - respondent
No.1 would invite my attention to the earlier round of litigation in
W.P.No.53669/2017 passed by this Court rejecting the very same
contention/claim of the petitioner, who was the writ petitioner in the
said petition and the said order had attained finality and become
conclusive and binding upon the petitioner. It is also submitted that
pursuant to the impugned order, the final decree proceedings have
been closed on 06.09.2025 and respondent no.1 had taken
possession of schedule 'B' property on 20.02.2026 and as such,
nothing further survives in the present petition and the same is
liable to be dismissed.
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5. By way of reply, learned counsel for the petitioner submits
that the earlier order passed by this Court in W.P.No.53669/2017
does not advert to these aspects of the matter and as such, the
impugned order deserves to be set aside. In support of his
submission, learned counsel for the petitioner relied upon the
following judgments:-
"1) Gas Point Petroleum India Ltd Vs Rajendra Marothi &
Ors, reported in (2023) 6 SCC 391"
2) BALRAM v. ILAM SINGH, reported in (1996) 5 SCC 705
3) Judgment dated 02.07.2024 passed by this Hon'ble
Court in Civil Revision Petition No.779/2023
(I0)Sri.Yuvaraja Vs Smt. Varadamma and others"
6. I have given my anxious consideration to the rival
submissions and perused the material on record.
7. Before adverting to the rival contentions, it would be
necessary to refer to the earlier round of litigation initiated by the
petitioner in W.P.No.53669/2017, wherein an identical claim of the
petitioner was rejected by this Court by noticing the conduct of the
petitioner in participating in the proceedings and being a party to
the compromise decree, which estopped him from subsequently
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assailing the auction sale held in favour of the auction purchaser.
The various contentions urged by the petitioner were rejected by
this Court by holding as under:
"1. The present writ petition is filed aggrieved by the
order passed in I.A.No.1/2016 dated 10.10.2017 in
Ex.No.2371/2012 by XXII Addl.City Civil & Sessions Judge,
Bengaluru (C.C.H.No.7).
2. The petitioner before this Court is the defendant
in the suit. The suit i.e., O.S.No.5590/1996 was filed seeking
partition in respect of the plaint A, B and C schedule properties
and the plaintiff claimed 1/10th share. The property as far as 'C'
schedule is concerned is dismissed and as far as Schedule 'A'
and 'B' is concerned, the suit is decreed. Aggrieved there by
FRA.No.2411/2006 was filed, which came to be allowed on
24.07.2008.
3. The parties have filed the, compromise memo.
4. Paragraph Nos.8 and 9 of compromise memo,
reads as under:
"8. Both the appellants and the respondents have
mutually agreed that the 'B' Schedule property
cannot be divided equally among themselves and
cannot be put into separate possession and thereby
the appellants and the respondents have agreed to
sell the 'B' Schedule property in public auction in
FDP.No.88/2006, pending before the City Civil Court,
Bengaluru within 10.04.2008 by extending full
co-operation between themselves.
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9. The appellants and respondents have
mutually agreed to divide the sale proceeds among
themselves according to the share declared in the
preliminary decree after deducting all the legal
expenses for the sale of the 'B' schedule property in
public auction. The appellants and respondents are
entitled to bid in the auction without initial deposit."
5. The suit 'B' schedule property is property No.17,
(formerly No.111/2), situated in 5th cross, New Kalasipalyam
layout, Bengaluru measuring 30 x 80 square feet. As per the
same, the auction was conducted on 30.05.2011 and highest
bidder has to deposit 25% of the bid amount. As on
14.06.2011, 15 days time was expired. On 08.06.2011,l the
highest bidder filed a memo to deposit the amount. On
11.07.2011, the amount was deposited, but it was deposited to
the account of the petitioner. Hence, they have come up with
these two applications before the Court. On 16.11.2016, 3rd
respondent has filed an application under Section 151 of CPC,
praying to permit the petitioner herein to retain his share in the
property and permit or direct the auction purchaser to withdraw
the amount deposited by him without claiming the share of 3rd
respondent in the interest of justice and equity. Application
under Order XXI Rule 29 of CPC is filed praying to stay the
proceedings in the execution petition, pending disposal of the
case in FDP.No.88/2006. Both these applications came to be
dismissed by the Court by virtue of this order impugned.
6. With regard to the application field under Section
151 of CPC, the Court has passed an order on 11.11.2011
directing the issuance of sale certificate to the purchasers, who
are the sisters. The sale certificate was registered on
15.06.2012 in favour of sisters. The petitioner before this Court,
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who is the brother-3rd respondent, has participated in the
proceedings in RFA.No.2411/2006 and he has not challenged
the public auction as well as sale certificate. 3rd respondent is
estopped from seeking any relief but to retain his share in 'B'
Schedule property by way of application. In FDP, Memo of
Calculation is said to have filed on 02.04.2014 and the Court
has ordered for the payment vide order dated 17.09.2014
stating that the amount is held in the Court until the possession
of the 1st floor of property has bee delivered to the sisters by the
brother, who is the petitioner herein.
7. The Court had recorded that RFA.No.649/2012, which
was preferred against the order dated 11.11.2011 i.e. Sale
Certificate, which is issued in favour of the sisters. The said
appeal was dismissed as having become infructuous. The Court
has also observed from the records as well as from the affidavit
in I.A, the order dated 17.09.2014 has been complied or not
when there is already an order as to the share of 3rd respondent
to be held in the Court and then again passing an order on the
very same claim of 3rd respondent will not arise. There is an
order that the share of the 3rd respondent is to be handed over
only after possession is delivered to the petitioner Nos.2 to 4
pertaining to the 1st floor of the property. When such being the
case, the prayer as sought for in the above I.Α. cannot be
permitted at this stage and another I.A., to retain the share and
to permit only the withdrawal of the amount deposited, in view of
the order, which is already passed by the Court, it cannot be
considered. Accordingly, both the applications are dismissed.
Aggrieved by the same, this writ petition is filed.
8. This writ petition is filed in the year 2017. Learned
counsel for the petitioner has filed I.A.No.1/2018 under order 6
Rule 17 of CPC read with Article 226 of the Constitution of India
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to raise additional facts and grounds. As per the provision
mandates, amount has to be deposited after the completion of
auction. In this case, it has not been deposited. As such,
serious defaults has been committed by the auction purchasers.
On the date of auction, 25% of the bid amount has to be
deposited and balance amount has to be paid within 15 days
thereafter and in the event if there is a default to make payment
within that date, the auction would stand abated on its own and
any subsequent deposit beyond 15 days is void and it is a nullity
in the eye of law.
9. Further, the other ground raised is that under the
Indian Partition Act, no separate procedure is contemplated so
far as the auction of the property is concerned. Therefore, any
provision available in the Partition Act, is only an enabling
provision and procedural aspects are concerned, the procedure
contemplated under Civil Procedure Code is required to be
followed. Under Order 21 Rules 84, 85, 86 and 90 of the CPC, a
procedure is contemplated so far as conducting the auction and
making deposits of the bid amount is concerned. According to
the said provision, on the date of the bid, the highest bidder has
to deposit 25% of the bid amount and balance 75% shall be
deposited on or before 15 days from the date of the auction. As
contemplated, as it was not done, the whole auction procedure
is vitiated and in the grounds they have relied on the judgment
of the Hon'ble Supreme Court in the case of BALRAM v. ILAM
SINGH and also in the case RAM KARAN GUPTA v. J.S.EXIM
LIMITED AND OTHERS. The petitioner wants to amend his
pleadings by virtue of this application.
10. The learned Senior counsel appearing for the
petitioner had argued in the similar lines and submitted that as
the amount is paid beyond the stipulated time, they are not
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entitled for the benefit and the entire sale is vitiated. Now the
only procedure that is available is to set aside the sale and to
conduct a fresh auction. It is submitted that as far as the sale
pertaining the 3rd respondent, who is the petitioner herein is
concerned, his prayer needs to be allowed and further the
amount that is deposited can be given back. He submits that
Section 2 and 3 of Partition Act is only a enabling provision and
procedure that is contemplated in the CPC has to be followed
and there cannot be any distinction between the auction in
respect of partition suit and auction in respect of any other
auction.
11. Learned counsel has also relied on the judgment of
Hon'ble Apex Court in the case of RAO MAHMOOD AHMAD
KHAN V. RANBIR SINGH AND OTHERS I, wherein he has
relied on paragraph No.12, which reads as under:
12. The question which now remains to be
considered is whether the deposit of 25 per cent of
the bid amount by the purchaser- Respondent No.
1 herein by cheque instead of cash would be a
valid deposit within the meaning of Rule 285-D of
the Rules. Admittedly, respondent No. 1 was
declared purchaser of the property in question on
18.10.1973. According to the learned counsel for
the appellants neither the deposit of 25 per cent of
the bid amount was made in cash nor by cheque
on 18.10.1973 as the cheque was encashed on
22.10.1973. While according to the learned counsel
appearing for the auction purchaser respondent
No. 1 the cheque was tendered on 18.10.1973 itself
which was encashed on 22.10.1973 and the
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amount was deposited in the Government treasury
22.10.1973. The question is whether such a
payment by cheque could be regarded as a valid
deposit within the meaning of Rule 285-D. As
discussed above Rule 285-D is a mandatory rule
according to which if 25 per cent of the bid amount
is not deposited immediately the land shall
forthwith be again put up and sold. In other words
on the failure of the purchaser to deposit 25 per
cent of the bid amount immediately the land shall
be re-sold after such failure the very same day. If
for instance the 25 per cent of the bid amount is
accepted by cheque and subsequently the
purchaser changes his mind and advises his
banker not to encash the cheque or there is no
amount in the account of the purchaser in the bank
and the cheque is bounced, the purpose of Rule
285-D would be frustrated and thus the mandatory
provision would be rendered nugatory. The result
would be that neither the authorities would be in a
position to forfeit any amount of the purchaser nor
the authority would be in a position to defray the
expenses of the sale as contemplated by Rule
285-E. The other consequence that will follow is
that the re-sale of land will have to be delayed and
a fresh proclamation for sale has to be issued as
provided by Rule 285-G. It, therefore, appears to us
that Rule 285-D does not contemplate any payment
by cheque but a cash deposit of 25 per cent of the
bid amount has to be made in accordance with the
requirement of the rule, otherwise the very
purpose of the mandatory Rule 285-D would be
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frustrated and rendered nugatory. In these facts
and circumstances we are of the view that deposit
of 25 per cent of the bid amount by cheque will not
be a valid tender within the meaning of the rule.
This was also the view taken by a Division Bench
of the Allahabad High Court in the case of Hira Lal
and the Learned Single Judge was not right in
ignoring the said view by observing that it was
obiter. The High Court of Madhya Pradesh in MI s.
Progressive Industrial Enterprises v. Bank of
Baroda - A.I.R. 1989 Μ.Ρ. 177 also expressed the
view that deposit of 25 per cent of the bid amount
by cheque which was not encashed on the date on
which the person was declared purchaser but on a
later date, there was no compliance of Order 21
Rule 84 (C) C.P.C.
12. The another judgment he relied on is BALRAM SON
OF BHASA RAM v. ILAM SINGH AND OTHERS. Learned
counsel has also relied on the judgment of Hon'ble Apex Court
in the case of RAM KARAN GUPTA v. EXIM LIMITED AND
OTHERS, wherein the paragraphs numbers 14, 19, 22, 23,
which reads as under:
14.We are in full agreement with the order passed by
the Executing Court as well as the High Court that
the auction purchaser had deposited 25% of the
amount on 8.10.2010. When the auction is for such a
large amount, running in crores of rupees, nobody
can expect the auction purchaser to pay the amount
in cash on the fall of the hammer. So far as the
instant case is concerned, facts would reveal that
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the auction purchaser had paid Rs.2.40 crores, may
not be in cash, but by way of drafts on 8.10.2010 and
the balance amount i.e. 75% of the bid amount was
also paid on 23.10.2010, consequently, in our view,
the auction purchaser had complied with the
provisions of Order 21 Rules 84 and 85 CPC.
19.A Constitution Bench of this Court in Jammulu
Ramulu (had occasion to consider the scope of Order 21
Rule 92(2) and Rule 89 CPC. Overruling P. K. Unni
(supra), this Court held as follows:
15. A plain reading of Order 21 Rule 92 CPC
shows that the court could either dismiss an
application or allow an application. Order 21
Rule 89 CPC prescribes no period either for
making the application or for making the deposit.
The Limitation Act also prescribes no period for
making a deposit. However, Article 127 of the
Limitation Act prescribes a period within which
an application to set aside a sale should be
made. Earlier, this was 30 days, now it has been
enhanced to 60 days. Unless there was a period
prescribed for making a deposit, the time to
make the deposit would be the same as that for
making the application. This is so because if an
application is made beyond the period of
limitation, then a deposit made at that time or
after that period would be of no use".
Normally, when the legislature wishes to
prescribe a period for making a deposit, it does
so by using words to the effect "no deposit shall
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be made after ... days" or "a deposit shall be
made within ... days" or "nо application will be
entertained unless a deposit is made within ...
days". Order 21 Rule 92(2) CPC does not use any
such expressions. The relevant portion of Order
21 Rule 92(2) CPC reads as follows:
"92. (2) Where such is made and
application allowed, and where, in the case of an
application under Rule 89, the deposit required
by that rule is made within thirty days from the
date of sale, ... court shall make an order setting
aside the sale:" Thus Order 21 Rule 92(2) CPC is
only taking away discretion of the court to refuse
to set aside the sale where an application is
made and allowed and the [pic]deposit has been
made within 30 days from the date of sale. It is
thus clear that Order 21 Rule 92(2) CPC is not
prescribing any period limitation within which a
deposit has to be made.
17. Viewed in this context the intention of
the legislature in extending the period under
Article 127 of the Limitation Act may be seen. It
is very clear from the Statement of Objects and
Reasons, which have been set out hereinabove,
that the period under Article 127 of the Limitation
Act was extended from 30 days to 60 days in
order to give more time to persons to make
deposits. The legislature has noted that the
period of 30 days from the date of sale was too
short and often caused hardships because
judgment-debtors usually failed to arrange for
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money within that period. The question then
would be whether by merely amending Article
127 of the Limitation Act the legislature has
achieved the object for which it increased the
period of limitation to file an application to set
aside sale."
The Constitution Bench held that all that
Order 21 Rule 92(2) CPC provides is that if the
deposit is made within 30 days from the date of
sale and an application is filed then the court
would have no discretion but to set aside the
sale. The Court held that (Jammulu Ramulu case,
SCC p.80, para 18)
18. that does not mean that if the deposit
is made after 30 days the court could not
entertain the application. If the deposit is made
beyond the period of 30 days, but within the
period of 60 days, then it will be within the
discretion of the court whether or not to grant
the application.
22. We notice, in this case, there was no reference at all to
the provisions of Order 21 Rule 89 in the application filed
by the appellant on 1.12.2010, be that it may, even then the
appellant had not complied with the mandatory
requirements of depositing the amount. Clause (a) of Sub-
rule (1) of Rule 89 of Order 21 requires the applicant to
deposit in Court 5 per cent of the purchase money for
payment to the auction-purchaser. Deposit of the requisite
amount in the Court is a condition precedent or a sine qua
non to an application for setting aside the execution of
sale and such a amount must be paid within a period
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specified in the rule and if the deposit is made after the
time-limit, the application must be dismissed. The deposit
made under Rule 89 of Order 21 CPC should be
unconditional and unqualified and the decree holder or the
auction purchaser should be able to get the amount at
once.
23. We have already indicated that the rule is in the nature
of a concession shown to the judgment-debtor, so he has
to strictly comply with the requirements thereof and a sale
will not be set aside unless the entire amount specified in
sub-rule (1) is deposited within 60 days from the date of
the sale and, if it is beyond 60 days, the Court cannot
allow the application. We have already found that the
appellant-judgment-debtor did not pay the amount within
the stipulated time and he only made an application on
1.12.2010 without depositing the amount and hence the
Court cannot entertain such an application and bound to
confirm the sale which, in this case, the Court did on
23.10.2010.
13. Based on these judgments, learned Senior counsel
submits that the sale that has been conducted and all the
subsequent proceedings are vitiated and the entire sale process
has to be set aside. He has also relied on the judgment of this
Court in Civil Revision Petition No.779/2023 in the case of
SRI.YUVARAJ AND SMT. VARADAMMA AND OTHERS.
Relying on the said judgment, it is submitted that learned judge
has clearly observed that whether the sale under the other
proceedings or suit for partition, it will not make any distinction
and the Court have to follow the principles laid down under the
Order XXI of the CPC. But once the illegality of not depositing
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the auction price within the statutorily prescribed timelines are
noticed when the records were perused and basing on that
Court has to come to the conclusion 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.
14. Learned Senior counsel has also relied on the
judgment of Hon'ble Apex Court in the case of GAS POINT
PETROLEUM INDIA LIMITED v. RAJENDRA MAROTHI AND
OTHERS, wherein he has relied on paragraph No.31.
31. Applying the law laid down by this Court in
the aforesaid decisions to the facts of the case
on hand, it is evident that there is non-
compliance of mandatory provisions of Order 21
Rules 85 and therefore, the sale was vitiated.
15. Based on these judgments, the Learned Senior
counsel submits that the order impugned has to be set aside.
16. Learned counsel for respondent has drawn the attention of
this Court to the order passed in RFA. No. 7411/2006 and the
compromise memo, particularly paragraph Nos.8 and 9 of the
compromise memo, where the respondents have mutually agreed
to sell the property In a public auction which is the part of
compromise decree that is passed and it is not open to any of the
parties to agitate on the aspect that the amount has to be returned
to the auction purchaser and he may be permitted to retain his
share of the property. The application 1.A.No.1/2016 goes
contrary to the compromise decree and the parties cannot come
up with such a plea and it is not permissible to act contrary to the
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compromise decree passed by the Court, which is binding on all
the parties.
17. He has drawn the attention of the Court to Section 3 of the
Partition Act, 1893. He submits that Section 3 is an exception to
Order XXII Rule 82(2) of CPC and the same would not apply for
the auction purchaser in respect of a partition suit. He relied on
the judgment of this Court in W.P.No.12119/2022 in the case of
RAJASEKHAR ANDANURU @ R.B.ANDANUR AND OTHERS
V. A.MOHAN AND OTHERS, wherein the issue that fall for
consideration before the Co-ordinate Bench of this Court was:
a. Whether the provision of Order XXI Rule 84 of
CPC are applicable to the auction conducted
under Section 3 of the Partition Act, 1893?
b. Whether the petitioners have made out a case
to set aside the auction on the ground that they
were not afforded an opportunity to participate in
the auction?
18. The contention raised was, respondent failed to deposit 25%
of the bid amount as on the date of auction as they failed to
deposit the same, the auction is vitiated. In that case, they relied
on the judgment rendered by the High Court of Andhra Pradesh in
the case of Baratam Satyanarayana v. Baratam Kantharao and
others, wherein a view was taken that in case of Sale under
Sections 3 and 4 of the Partition Act, 1983, the sale of shares of
other shareholders in favour of shareholder applying for purchase
is governed by self contained procedure under Section 3 and 4
only such 'necessary or proper directions' as the Court may grant
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and not by the procedure in Section 7, which is directory in nature
and the Court is vested with discretion to extend time for
depositing the amount towards sale of shares of other
shareholders without reference to provisions of Order 21 Rule 84
of CPC. Even in the case of K. VIVEKANANDAN v. N.
VIJAYAKUMAR, the same view was taken. The Court has also
considered another judgment of High Court of Delhi in the case of
KRISHAN KUMAR MEHRA V. ROOP LALL MEHRA AND
OTHERS, wherein it is held that there is no strict application of the
provisions of CPC as the Legislature was conscious of the fact
that in partition suits, an auction could also involve one of the co-
sharers or decree holders purchasing the suit property. The strict
applicability of the provisions of Order 21 of CPC can thus be
relaxed by the Court while exercising its discretion. Learned
Judge on necessary scope on Sections 2 and 3 of the Act and in
observation with the legislature has used the word 'Shareholder',
which otherwise means and connotes a person, who has a share
in a property. The sale of joint property under Sections 2 and 3 of
the Act of 1893 is different from a property sold in a public auction
as per the provisions of CPC, where a condition for deposit and
resale in case of default are provided. When auction is conducted
among co-sharers i.e., within the family members, the requisite
deposit of 25% and thereafter the balance amount to be deposited
within a period of 15 days cannot be made applicable insofar as in
case of an auction conducted under the provisions of Partition Act.
The Court observed that the provisions of Order XXI Rules 84 and
85 of CPC will apply when there is a public sale of the property.
Where property is sold under the provisions of the Partition Act,
Rules cannot be applied and the Court can extend the time for
payment of deposit in exercise of its inherent powers and the
Court has also observed that the auction provision under Order
XXII are held to be applicable to the auction conducted under the
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provisions and the Section 3 of the Act of 1893 and they are to be
deemed as directory and not mandatory.
19. Learned counsel for respondent relied on another judgment in
the case of H.S. GOUTHAM V. RAMA MURTHY AND
ANOTHER, wherein paragraph No.34 reads as under:
34. At this stage, it is required to be noted that
as per the relevant provisions of the Code of
Civil Procedure, more particularly, Order 21 Rule
92 read with order 21 Rule 94, once the sale is
confirmed and the sale certificate has been
issued in favour of the purchaser, the same
shall become final.
20. He has drawn the attention of this Court in the judgment of
ANNAPURNA v. MALLIKARJUN AND ANOTHER, wherein the
apex Court has observed
"Although Order 21 Rule 89 CPC does not
prescribe any period either for making the
application or the required deposit, Article 127
of the Limitation Act now prescribes 60 days as
the period within which such an application
should be made. In absence of any separate
period prescribed for making the deposit, the
time to make the deposit and that for making the
application would be the same. The deposit of
the requisite amount in the court is a condition
precedent or a sine qua non to application for
setting aside the execution of sale and such an
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amount must be deposited within the prescribed
time for making the application otherwise the
application must be dismissed".
21. Learned counsel for respondent submits that sale
certificate that was issued in favour of the purchaser i.e. sisters, in
the year 2012, registered on 15.06.2012 was never questioned
and now it is not open for them to come up with such a relief,
therefore prays for dismissal of the petition.
22. Heard learned Senior counsel for petitioner and learned
counsel for respondents and perused the material on record.
23. Before dealing with the impugned order, it is
appropriate to look at the applications that are filed. The petitioner
herein, who is one of the co-sharers, who is a brother, sought for a
relief to permit him to retain his share in the property and direct the
auction purchasers to withdraw the money deposited by them,
other relief that is sought is to stay further proceedings in the
Εx.No.2371/2012 pending disposal of the case in
FDP.No.88/2016. Then on what basis the petitioner wanted to
retain his share in the property and to direct the auction
purchasers to withdraw the money deposited by him without
claiming share is in the first 1 to 3 paragraphs, he has narrated
about the events. In paragraph No.4, he has stated that auction
purchasers are the shareholders and interested parties in the suit
schedule properties and taking advantage of the situation and
misunderstandings prevailing amongst them, the decree holders
did not deposit the sale consideration amount on time and it was
not allotted and delivered to the petitioner. There is an inordinate
delay and no benefit could be derived to the decree holder even
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after depositing of the value of the schedule property before the
Court on a later stage. If the physical possession of the property is
taken it will be put to untold hardship and it will not meet the ends
of justice.
24. In this entire affidavit, he has not stated about anything
with regard to any of the chronology of events that had taken place
subsequent to compromise decree passed in RFA. He has not
even taken any plea with regard to the auction being vitiated and
all those grounds. Now by way of a petition, before this Court, he
has filed an application under Order VI Rule 17 of CPC, wherein
he is seeking permission to plead all these grounds before this
Court by way of I.A.No.1/2018. This Court is exercising
supervisory jurisdiction under Article 227 of Constitution of India.
Now, while exercising the supervisory jurisdiction, the pleadings,
which are supposed to be taken before the Court and pleadings
basing on which, the order is already passed, what has to be
adjudicated by this Court is only with regard to the legality or
otherwise of the said order. This Court cannot permit the party to
amend the pleading by way of an application under order VI Rule
17 of CPC that is filed before this Court is beyond the scope of
Article 227 of Constitution of India. This Court cannot entertain
such an application. Accordingly, I.A.No.1/2018 is dismissed.
25. Coming to the merits of the matter, when the sale
certificate was issued on 11.11.2011 and it was registered on
15.06.2012, when the petitioner being a party in all the
proceedings, he has never chosen to question the sale deed and
those proceedings have attained finality. The submission made
before this Court is Order XXI Rule 84 is not followed, though no
application is filed to set aside the sale certificate or question the
proceedings. But still this Court is empowered under Article 227 to
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go into all these issues. Such an argument advanced by the
learned Senior counsel also has no legs to stand. The power
confined on this Court under Article 227 cannot be exercised in
such a manner.
Secondly, Petitioner is a party to the compromise
decree, he is a signatory to the sald, compromise memo filed
before the Court wherein all parties have agreed to put the 'B'
Schedule property for auction. In that case, unless and until, the
compromise decree is set aside, it is not open for the parties to
a compromise decree to come up before the Court and file an
L.A, which stands contrary to the judgment and decree passed
by this Court in RFA. On this ground alone the writ petition has
to be dismissed as such a relief that is sought by the petitioner
cannot be granted by the Court as it runs contrary to the
compromise decree in view of the memo filed by the parties in
the RFA. On that ground itself 1.A.No.1/2016 needs to be
dismissed and staying of FDP proceedings also do not stand in
the light of first prayer, which cannot be entertained.
26. Then both the parties have relied on the procedure
that has to be followed under the Partition Act, under Section 2
and 3 and they relied on two conflicting judgments of this Court
where in first case, relied on by the petitioner, the learned judge
has taken a view, whether araising out of the partition suit or it
otherwise procedure under Order XXI Rule 84 has to be
followed. wherein the judgment relied by the respondents in that
case, the learned Judge of this Court has taken a view that
when the auction takes place in a Partition suit, Section 2 and 3
of the Partition Act, will apply in that case, a strict time line
under Order XXI Rule 84 need not to be followed and the Court
has the power to enlarge the time. This Court is not inclined to
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go into any of the aspects. The only relief that is sought in the
IA or is to stay of the final decree proceedings and to permit the
petitioner to retain the property and the amount which was
deposited in auction has to be given back to the auction
purchaser. Such application the petitioner cannot file, in the light
of compromise decree. When he can not maintain the relief that
is sought in the IA's this court need not go in to other issues.
27. In that view of the matter, this court finds no
reasons to interfere with the well considered order passed by
the Executing Court. Accordingly the writ petition stands
dismissed.
All IA's in the writ petition shall stand closed. "
8. As can be seen from the aforesaid order passed by this Court
in the earlier round of litigation, this Court has taken note of the
fact that the petitioner was a party to the compromise decree and
that the auction sale had been conducted as long back as in the
year 2011 and also that the grounds urged in the said petition as
regards non-compliance with the provisions of Order XXI Rules 84
and 85 of CPC were not available to the petitioner. Further, the
claim of the petitioner to assail the auction sale and for permission
to retain the family property for himself by setting aside the auction
sale has been clearly and categorically negatived by this Court.
Under these circumstances, I am of the considered opinion that the
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trial Court was fully justified in rejecting the application- I.A.No. 5
filed by the petitioner and the impugned order does not warrant
interference by this Court in the present petition.
9. A perusal of the impugned order will indicate that the trial
Court has come to the conclusion that the petitioner, who was a
party to the proceedings and the auction sale having been
conducted in the year 2011 and the sale certificate was issued on
11.11.2011 and the same was registered as long back as on
15.06.2012, which was subsequently estopped from filing the
present belated application with the sole intention of protracting
and delaying the proceedings. While arriving at the said
conclusion, the trial Court held as under:
"ORDERS ON IA NO.5
The respondent No.3 has filed the IA No.5 under
Section 151 of CPC and prays to recall the order dated
11.11.2011 & order for fresh pubic auction of the
schedule B property.
2. The application is supported in an affidavit
sworn to by 3rd Respondent by name Krishnamurthy.B.
3. On the other hand the legal representative of
petitioner No.5 has filed his objections and prays to
reject the IA No.5 with exemplary costs.
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4. Heard and perused the materials placed on
record.
5. The following points arise for my
consideration;
1. Whether the IA No.5 filed by the
respondent No.3 under Section 151 of CPC
is deserved to be allowed?
2. What order?
6. My answers to the above points are as follows;
1. POINT No.1 : In the negative
2. POINT No.2 : As per final order,
for the following;
REASONS
7. POINT NO.1:- The learned Advocate for
respondent No.3 contended that the parties are full
blood brothers and sisters & at the instance of sisters
suit for partition was filed in OS No.5590/1996 with
respect to 'A' 'B' & 'C' schedule properties. After
contest the suit was decreed allottee 1/10th share in 'A'
& 'B' schedule properties and suit with respect to 'C'
schedule property was dismissed. The said judgment
was challenged by preferring RFA No.2411/2006 before
the Hon'ble High Court of Karnataka. In the said
proceedings, there was a compromise petition filed to
the effect that 'A' & 'B' schedule properties were to be
subjected to Public Auction and sale proceeds to be
realized in the proportion to the share as per judgment
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and decree in OS No.5590/1996. The auction
proceedings were completed with respect to 'A'
schedule property. So far as 'B' schedule property was
concerned, the same was ended up being subject
matter of FDP proceedings before this Court. In the
present proceedings 'B' schedule property was
subjected to public Auction. In the public auction, the
petitioners were the successful bidders and agreed sale
price was Rs.1,17,00,000/-. As per the terms of the
bid, 25% of bid/auction amount was required to be
deposited by the petitioners within 24 hours and the
balance amount was to be paid within 15 days from the
date of bid. Even though specific conditions were
enumerated in the CPC the petitioners failed to do so
consequently making the entire process of public
auction not in accordance with law. The petitioners
however deposited Rs.66 Lakhs which is equivalent to
the extent of six shares after two months. Out of the
said amount, the share of respondent NO.3 is still lying
before this Court and has not been disbursed in favour
of respondent No.3. The process of public auction was
not competed even though sale certificate too was
issued in favour of the Padmakodandaram. There were
serious objections raised by the Padmakondandaram for
realization of the sale price proportionate to the share
of respondent No.3, on the pretext that handing over of
possession presupposes realization of sale price. This
prompted the entire process of public auction becoming
defunct, irrational and leading to tremendous prejudice
and hardship to respondent No.3. The respondent No.3
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filed an application under Section U/s 151 of CPC to
retain his proportionate share of land in 'B' schedule
property which was dismissed by this Court and the
respondent No.3 has preferred WP No.53669-
53670/2017 wherein the Hon'ble High Court of
Karnataka has stayed the proceedings of this Court.
However, the Hon'ble High Court passed judgment on
22.07.2024 which has now been challenged by
respondent No.3 before the Hon'ble Supreme Court of
India which is pending for adjudication. As the entire
process of the public auction was not strictly complied
with the conditions & stipulations enumerated under
law and also for the reason that the entire process of
public auction has prejudiced the rights of respondent
No.3, it is become inevitable for respondent No.3 to
approach the Court for fresh public auction with respect
to 'B' schedule property. Now the real estate value has
increase din mane fold and the respondent No.3 has
unable to realize any benefit of the same, since the
amount is still lying with this Court and he could not
derive any benefits which he is entitled to as a share
holder of the 'B' schedule property. If the 'B' schedule
property is subjected to fresh public auction all the
parties to the proceedings shall be benefited. There will
be not prejudice or hardship or inconvenience that will
be caused to any party and all the family members are
at liberty to participate in the fresh public auction if
they are interested to retain the 'B' schedule property.
If 'B' schedule property is not re-auctioned the
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respondent No.3 will be put to hardship and hence
prays to allow the application.
8. The learned Advocate for legal representative
of petitioner No.5 contended that the application filed
by the respondent No.3 is not maintainable either under
law or on facts and the same is liable to be dismissed in
lemine. The respondent No.3 has filed this application
to recall the order dt.11.11.2011 for setting aside the
sale of the 'B' schedule property in the public auction.
The application is totally misconceived. The said
application is filed only to delay the proceedings with
malafide intention. The respondent No.3 filed similar
application under Section U/s 151 of CPC in the above
case in a different form to retain his alleged share by
setting aside the said sale by way of public auction. (IA
No.1/2016) and the same was dismissed by this Court
by its order dated 10.10.2017. The said order was
challenged before the Hon'ble High Court of Karnataka
by respondent No.3 by filing WP No.53669/2017 which
was dismissed on merits. Therefore, the matter cannot
be re-agitated before this Court which is barred by
principles of res-judicate. The sale certificate was
issued on 11.11.2011 and it was registered on
15.06.2012. The respondent No.3 is a party to the
same and he has not questioned the auction sale in any
manner being actively participated in the auction. The
respondent NO.3 is estopped from questioning the
auction sale in any manner. AS the sale is confirmed
the same cannot be set aside because the auction
purchase will become absolute owner of the property.
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Hence, among all other grounds prays to dismiss the
application.
9. It is pertinent to note that the petitioner has
filed similar application to set aside the said sale by way
of public auction earlier and it is not in dispute that the
said application was dismissed by this Court on
10.10.2017. It is significant to note that the sale of
joint family property under partition act is quite
different from the property sold in public auction
between the public at large. Further the sale certificate
was issued on 11.11.2011 and when the property is
registered on 15.06.2012 now at belated stage the
respondent No.3 cannot seek for cancellation of public
auction. Moreover, on the order dated 10.10.2017 the
present respondent No.3 has preferred WP before the
Hon'ble High Court of Karnataka vide WP
No.53669/2017 and the Hon'ble High Court of
Karnataka by its order dt.22.07.2024 has dismissed the
WP filed by the present respondent No.3. Hence, the
present application filed by the respondent NO.3 is not
maintainable. Accordingly, I answer Point No.1 in the
negative."
10. POINT No.4:- In view of my findings on
point No.1 in the negative, I proceed to pass the
following;
ORDER
I.A. No.5 filed by the respondent No.3 under
Section 151 of CPC is here by dismissed."
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10. As rightly held by the trial Court, the petitioner who has been
filing application after application, attempting to protract the
proceedings was not entitled to any relief and the application was
rejected by the trial Court on this ground also and the impugned
order does not warrant interference in the present petition.
11. A perusal of the material on record will indicate that pursuant
to the impugned order, the final decree proceedings have been
closed and the respondents have taken possession of Schedule 'B'
property on 20.02.2026, which is yet another circumstances that
would come in the way of the petitioner re-agitating his claim that
too after a lapse of more than 14 years.
12. In view of the aforesaid facts and circumstances and upon
reconsideration, re-appreciation, re-evaluation of the entire
material on record, I am of the considered opinion that the
impugned order passed by the trial Court cannot be said to suffer
from any illegality or infirmity, nor can the same be said to be
capricious or perverse nor occasioned failure of justice, warranting
interference by this Court in the exercise of its jurisdiction under
Article 227 of the Constitution of India as held by the Apex Court in
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the case of (i) Radhey Shyam & others Vs. Chhabi Nath &
Others - (2015) 5 SCC 423 (ii) K.P.Natarajan & Others Vs.
Muthalammal & Others - AIR 2021 SC 3443 (iii) Mohammed Ali
Vs. Jaya - (2022) 10 SCC 477.
13. Insofar as the judgments relied upon by the learned counsel
for the petitioner, the principles laid down in the said judgments
would not be applicable to the factual matrix involved in the
present case, especially in the context of the conduct of the
petitioner, who has been repeatedly attempting to scuttle/ thwart
the proceedings by filing repeated applications and as such, no
reliance can be placed on the said judgments by the petitioner in
support of his claim.
14. Accordingly, I do not find any merit in the petition and the
same is hereby dismissed.
SD/-
(S.R.KRISHNA KUMAR)
JUDGE
VMB
List No.: 1 Sl No.: 23
