P Srinivas vs A Manjusha
2021 Latest Caselaw 4468 Tel

THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                    CRP Nos.1041 and 1075 of 2019

COMMON ORDER:

1.    The petitioner/judgment debtor/1st defendant has filed CRP

No.1041 of 2019 aggrieved by the order dated 10.04.2019 in IA

No.147 of 2019 in IA No.267 of 2018 in OS No.1686 of 2013 on the

file of XVII Additional Senior Civil Judge, City Civil Court,

Hyderabad.


2.    Whereas, the petitioners/judgment debtors/defendants 1 to 4

have filed CRP No.1075 of 2019 aggrieved by the order dated

10.04.2019 in IA No.267 of 2018 in OS No.1686 of 2013 on the file

of XVII Additional Senior Civil Judge, City Civil Court, Hyderabad.


3.    The respondent/petitioner/plaintiff has filed the original suit

No.1686 of 2013 for partition and separate possession of pliant

schedule properties and that suit was decreed by the Court below.

Thereafter, the plaintiff has filed IA No.267 of 2018 under Order-XX,

Rule 18 of CPC to put auction of the suit schedule property and the

property of other shareholders, as the same could not be divided and

to pay the amount or the value of 1/6th share of the plaintiff as per the

market value. That IA No.267 of 2018 was allowed as per the orders

dated 23.01.2019 and sale proclamation was ordered for auction of the

schedule property on 28.02.2019. In the said order, it is also

mentioned that an advocate commissioner was appointed on

20.10.2017 itself pursuant of the judgment and decree passed by the
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                                                  CRP Nos.1041 & 1075 of 2019


Court on 30.11.2016 whereunder a preliminary decree for partition

and separate possession of 1/6th share of the plaintiff's suit schedule

property i.e., house bearing No.16-10-386/3 admeasuring 80 square

yards situated at Old Malakpet, Hyderabad. Later on 20.10.2017 an

advocate commissioner was appointed to divide the suit schedule

property in terms of preliminary decree, who filed a report on

20.03.2018 stating that it is not feasible for division of suit schedule

property either vertically or horizontally into six equal shares since the

extent of area is very less.


4.    Undisputedly, the petitioner herein was also present in the

Court at the time of Advocate Commissioner filing such a report, but

he did not raise any objection for conducting the auction of suit

schedule property. However, it is submitted that he requires some

time for purchasing the suit schedule property. As per the order

impugned, the Court below has clearly indicated that ample

opportunity was given to the petitioner/1st defendant to purchase the

suit property. Instead of purchasing the suit property, he has again

filed IA No.147 of 2019 u/s.151 CPC permitting him to buy the 1/6th

share of the plaintiff in the schedule property by paying 1/6th share

value to the plaintiff as per the market value without going for auction

and pass any such other order.


5.    Accordingly, the Court below has given opportunity one more

to the petitioner to purchase the property, but he has not availed such
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                                                    CRP Nos.1041 & 1075 of 2019


opportunity till the date of passing of the orders impugned i.e.,

10.04.2019. In such circumstances, the Court below has recorded

clear finding to the effect that the intention of the party is only to

dodge the auction proceedings. Already an opportunity was given to

him to purchase the property from 11.09.2018 onwards and he did not

avail such opportunity and he has not shown any readiness or

willingness to purchase the property except filing the application and

accordingly, the petition was rejected.


6.        The learned counsel for the petitioner seeks to submit that the

respondent No.1 being one of the coparceners is entitled to purchase

the property as per Sections 2 and 3 of Partition Act, 1893 relied on

the following decisions:


           i) K. Raghavendra Rao v. K. Srinivasa Rao and others1; and
          ii) Malati Ramchandra Raut v. Mahadevo Vasudeo Joshi2.


7.        I have carefully perused the principles laid by the Hon'be

Supreme Court of India in the decisions cited above. It is not the case

of the petitioner that the petitioner was not given an opportunity to

participate in the auction. As per the commissioners report, the entire

extent of suit schedule property is 80 square yards and it is not

feasible to divide this property into six equal shares either vertically or

horizontally. Accordingly, as per the orders in IA No.267 of 2018

considering the intention of all the parties to the suit, it was proposed


1
    AIR 1989 Karnataka 334
2
    1991 (1) SCJ 311
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                                                 CRP Nos.1041 & 1075 of 2019


to auction the property and to distribute the sale proceeds in terms of

preliminary decree. Hence, auction was conducted by issuing sale

proclamation. The petitioner was also permitted to buy as per the

valuation of the share as on date. But, instead of participating in the

auction, he is trying to stall the proceedings under one pretext or the

other, which is evident from the observations made by the Court

below in the order impugned and the proceedings in IA No.267 of

2018. Therefore, I am of the considered opinion that the Court below

has given ample opportunity to the petitioner/1st defendant to

participate in the auction in conformity with Sections 2 and 3 of

Partition Act, 1893. There is no irregularity or illegality in the order

impugned and it does not warrant any interference by this Court.


8.    CRP No.1075 of 2019 is filed by the 1st defendant along with

defendants 2 to 4 assailing the orders in IA No.267 of 2018 dated

10.04.2019 wherein pursuant to the sale proclamation, auction was

held, one Smt. A. Sanjana was the highest bidder and that she has paid

1/4th share of the sale amount of Rs.20,90,000/- i.e., Rs.5,22,500/-, out

of which poundage charges of Rs.62,745/- were deducted and the

remaining amount of Rs.4,59,755/- was deposited in the Account

Section. This order was under challenge. In view of my observations

in CRP No.1041 of 2019, ample opportunity was given to the

petitioner/1st defendant to participate in the auction and to purchase

the share of the plaintiff and the share of others also, but he failed to

participate in the auction. Therefore, I do not find any merit in the
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                                               CRP Nos.1041 & 1075 of 2019


contention of the petitioner/1st defendant that he was not given an

opportunity to participate in the auction in terms of Sections 2 and 3

of Partition Act, 1893. As such, CRP No.1041 of 2019 is liable to be

dismissed, consequently, CRP No.1075 of 2019 is also liable to be

dismissed.


9.    In the result, CRP Nos.1041 and 1075 of 2019 are dismissed

and the order impugned dated 10.04.2019 in IA No.147 of 2019 and

order impugned dated 10.04.2019 in IA No.267 of 2018 are

sustainable. In the circumstances of both the cases, there shall be no

order as to costs. Miscellaneous applications, if any pending in these

revision petitions shall stand closed.



                                    _______________________________
                                    A. VENKATESHWARA REDDY, J.

Date: 20.12.2021 Isn