Telangana High Court
Mohd. Mujthaba Ali vs Mohd. Murtuza Ali on 22 March, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
IN THE HIGH COURT FOR THE STATE OF TELANGANA:
HYDERABAD
***
CIVIL REVISION PETITION No.3099 of 2023
Between:
Mohd. Mujthaba Ali and another.
Petitioners
VERSUS
Mohd. Murtuza Ali and Ors.
Respondents
ORDER PRONOUNCED ON: 22.03.2024
THE HON'BLE SRI JUSTICE P.SAM KOSHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
__________________
P.SAM KOSHY, J
::2::
* THE HON'BLE SRI JUSTICE P.SAM KOSHY
+ CIVIL REVISION PETITION No.3099 of 2023
% 22.03.2024
# Between:
Mohd. Mujthaba Ali and another.
Petitioners
VERSUS
Mohd. Murtuza Ali and Ors.
Respondents
! Counsel for Petitioner(s) : Mr. B.Chandrasen Reddy
^Counsel for the respondent(s) : 1) Mr. Mohd. Murtuza Ali,
party-in-person for
respondent No.1
2) Ms. Vedula Chitralekha,
learned counsel for the
respondent Nos.3, 7, 8, 12,
16, 18, 19 and 20 to 23
<GIST:
> HEAD NOTE:
? Cases referred
1) (2009) 13 Supreme Court Cases 569
2) (1972) 2 Supreme Court Cases 721
3) 1991 Supp (1) Supreme Court Cases 321
::3::
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
CIVIL REVISION PETITION No.3099 of 2023
ORDER:
The instant Civil Revision Petition under Article 227 of the
Constitution of India has been filed by the petitioners assailing the
order dated 04.10.2023 passed by the Court of the IX Additional
Court Chief Judge, City Civil Court, Hyderabad (for short, 'the
Court below) in I.A.No.775 of 2023 in O.S.No.19 of 2003.
2. Heard Mr. B.Chandrasen Reddy, learned Senior Counsel for
the petitioners, Mr. Mohd. Murtuza Ali, party-in-person for
respondent No.1, and Ms. Vedula Chitralekha, learned counsel for
the respondent Nos.3, 7, 8, 12, 16, 18, 19 and 20 to 23.
3. Vide the said impugned order, the Court below has allowed
the petition filed by the plaintiff under Section 2 of the Partition
Act read with Section 75 of CPC vide I.A.No.775 of 2023. While
allowing the said I.A., the Court below allowed appointment of an
Advocate Commissioner to sell the schedule A and schedule B
properties by way of public action.
4. The brief facts relevant for disposal of the instant Civil
Revision Petition are that the plaintiff had filed O.S.No.19 of 2003
seeking for partition so far as schedule A and schedule B
::4::
properties are concerned. The aforesaid Suit was decreed in favour
of the plaintiff vide judgment and decree dated 15.06.2016 and
preliminary decree was passed allotting 1/8th share in schedule A
and schedule B property in favour of the plaintiff as well as
defendant Nos.2, 4, 5, 6 and 8 and 1/16th share each to defendant
Nos.1, 3, 7 and 19. Schedule A property is house No.13-3-994/1
measuring 800 square yards at Malakpet, Hyderabad opposite to
printing press. Schedule B property is house No.3-2-739 to 3-2-
744 measuring 600-700 square yards at Chappal Bazar,
Hyderabad.
5. Petitioners/defendant Nos.6 and 8 aggrieved of the
preliminary decree filed an appeal vide C.C.C.A. No.233 of 2016
before this High Court which stood dismissed on 10.06.2022
upholding judgment and decree passed by the Court below.
Subsequent to dismissal of the appeal, an I.A. was filed i.e.
I.A.No.1623 of 2016 for appointment of an Advocate Commissioner
which stood allowed on 20.03.2016. One Mr. D.Chandrashekar
Reddy was appointed as the Advocate Commissioner, who in turn
submitted his report on 30.05.2017. Meanwhile, the final decree
was passed pursuant to I.A.No.1623 of 2016 and while passing the
final decree, the Court below accepting the report submitted by the
Advocate Commissioner held that the Suit schedule A and B
properties were not divisible as per the preliminary decree with
metes and bounds, therefore, it was advised for putting the
::5::
property on sale in public auction and the sale proceeds to be
divided among all the parties. Subsequently, the instant I.A. i.e.
I.A.No.775 of 2023 under Section 2 of the Partition Act read with
Section 75 of CPC has been filed seeking for appointment of an
Advocate Commissioner for selling the Suit schedule A and B
properties and for division of the sale proceeds accordingly among
the parties. It was this I.A. which stands allowed and against
which the instant Civil Revision Petition has been filed.
6. It was the contention of the learned Senior Counsel for the
petitioners that the Court below failed to appreciate the fact that
the petitioners herein ought to have been given the right to
preemption and permission to purchase the shares from other co-
owners. The instant Civil Revision Petition has been filed on behalf
of the defendant Nos.6 and 8 who have also been awarded equal
share as that what has been awarded to the plaintiff i.e. 1/8th of
the share in the Suit schedule property.
7. Learned Senior Counsel for the petitioners was contending
that the Suit schedule property is in possession of the family
members of the petitioners including that of the plaintiff for the
last more than seventy (70) years. It was further contended that
one of the floors in the Suit schedule A property was constructed
by respondent No.8 out of his own funds which is also reflected in
the Court proceedings. In addition, since it is in their possession
::6::
for more than seven (07) decades, the property is also
sentimentally attached which also forces them to invoke provision
of Section 3 of the Partition Act which has not been considered at
all.
8. It was the further contention of the learned Senior Counsel
for the petitioners that they are ready to pay an amount of
Rs.8,00,00,000/- which is much higher than the market value of
the property and had prayed for the right of preemption in favour
of the petitioners.
9. It was contended that as regards the petitioners are
concerned, they are only claiming right of preemption in the Suit
schedule A property. So far as schedule B property is concerned,
they do not have any objection if the said Suit schedule B property
is put up in auction and the sale proceeds is distributed in
accordance with the terms of the decree passed in the Suit for
partition.
10. According to the learned Senior Counsel for the petitioners,
respondent No.1 himself has quoted the value of schedule 'A'
property at Rs.4,00,00,000/- and the petitioners herein who are
the defendant Nos.6 and 8 in the original Suit are ready to pay an
amount of Rs.8,00,000/- for the said property while claiming right
of preemption in the Suit schedule 'A' property. It is the further
contention of the learned Senior Counsel for the petitioners that in
::7::
terms of the judgment and decree, the two petitioners herein who
are the defendant Nos.6 and 8 in the Suit are also entitled for one
share each in the suit schedule A property.
11. If that be so, of the Rs.8,00,00,000/- which has been
assessed by the petitioners to be the value of schedule 'A' property
which they are ready to give for the subject property in which 1/8th
of the share to each of the petitioners would come to
Rs.1,87,50,000/- and which between the two would come to
Rs.3,75,00,000/-. Accordingly, the petitioners herein are ready to
deposit an amount of Rs.4,25,00,000/- i.e. the amount after
adjusting Rs.3,75,00,000/- i.e. their share in the Suit schedule A
property before the Court below. The petitioners have also made a
statement that if the aforesaid proposal is accepted, the petitioners
are also ready to relinquish their rights in the Suit schedule B
property.
12. Respondent No.1/party-in-person on the other hand
opposing the Civil Revision Petition submits that the proposal
moved by the petitioners is not worth accepting. According to him,
upon the property being put to auction, Suit schedule A property
can fetch more price than what has even been quoted by the
petitioners i.e. Rs.8,00,00,000/-. Under the said circumstances,
respondent No.1 also would be getting larger share in the Suit
schedule property.
::8::
13. Primarily respondent No.1 was opposing the proposal of the
petitioners on the simple ground that the Advocate commissioner
having visited the spot itself and found that the said property
could not be portioned and distributed between each of the
shareholders. Since the partition of the property was not
practically possible, therefore, the only way for respondent No.1 in
getting his share in the property was by way of auction which
could fetch maximum value of the property considering the present
day value.
14. On the other hand, the other respondent i.e. respondent
No.16 who had filed her counter affidavit on behalf of respondent
Nos.3, 7, 8, 12, 17, 18 and 19 opposed the Civil Revision Petition
on the ground that since the decree has been finalized, the same
could not be executed because of the present Civil Revision
Petition and the interim order obtained therein.
15. However, learned counsel appearing for respondents
submits that there does not seem to be any dispute on the part of
the present petitioners in putting the Suit schedule B property in
auction. Thereby at least that part of the decree would get
executed and each of the parties to the Suit would get their
respective share that they are legally entitled for.
16. According to the learned counsel for the respondents, the
Suit schedule A property since it is situated on the main road,
::9::
there is all possibility of the same to fetch more than
Rs.10,00,00,000/- in public auction. Therefore the offer given by
the petitioners to that extent would be dis-advantageous so far as
the other shareholders are concerned. According to the learned
counsel, whatever be the course of action let the Civil Revision
Petition itself be decided at the earliest so that the shareholders
can get their share in the Suit schedule property after the auction
at the earliest. Learned counsel further submits that since the
litigation itself has now gone past twenty (20) years, let the entire
dispute be laid to rest for all times to come.
17. Having heard the contentions put forth by all the counsels
appearing for the respective parties and also the party-in-person,
the impugned order has been passed on I.A.No.775 of 2023 in
O.S.No.19 of 2003. The said I.A. has been filed by the petitioners
under Section 2 of the Partition Act read with Section 75 of CPC
seeking appointment of an Advocate Commissioner so as putting
on sale the Suit schedule A & B properties by way of public
auction. The preliminary decree in the said O.S.No.19 of 2003 was
passed on 15.06.2016. As per the decree, the property was to be
distributed as has been described in paragraph No.4 of this order.
Upon appointment of an Advocate Commissioner who filed his
report on 30.06.2017 holding that schedule A as also schedule B
properties were not divisible as per the preliminary decree with
metes and bounds. The Advocate Commissioner therefore in his
::10::
report advised for putting the property in public auction and the
sale proceeds be divided among all the parties in terms of the
share which falls on each of the parties. So far as the petitioners
are concerned, they were entitled for only 1/8th share in the Suit
schedule A and B properties.
18. Since the petition was filed by the petitioners herein
substantively under Section 2 of the Partition Act read with
Section 75 of CPC, it would be necessary also to take note of other
provisions which are there in the Partition Act, 1893. In fact, it was
under the very same Act that the respondent Nos.6 and 8, the
petitioners in the present Civil Revision Petition had sought for
right of preemption under Section 3 of the Partition Act.
19. For proper understanding and for convenience sake, it would
be relevant at this juncture to quote Section 2 as well as Section 3
of the Partition Act, which for ready reference are reproduced
herein 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
properly 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
::11::
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."
20. In this context, if we look at the prayer made by the
petitioners herein before the Court below, what clearly is reflected
is that respondent Nos.6 and 8 contended that they are
sentimentally attached to the said house as they are residing in
the said premises for more than seven (07) decades. Hence, they
do not want to forego the said property or put up the subject
property for sale. Though in the petition filed before the Court
below under Section 2 of the Partition Act, the plaintiff has quoted
the price of the Suit schedule A property to be worth
Rs.4,00,00,000/-. The petitioners who also have their share in the
said property have quoted a price of Rs.8,00,00,000/- for the said
property and of which they have also offered to pay an amount of
Rs.4,25,00,000/- after deducting their individual share in the
property worth Rs.3,75,00,000/- jointly from the total of
Rs.8,00,00,000/- that they have offered. It was this application of
preemption which has been rejected by the Court below against
which the instant Civil Revision Petition has been filed.
::12::
21. If we look into the provisions of Sub-Section 1 and Sub-
Section 2 of Section 3 of the Partition Act, it would reflect that
there is a mandatory term which has been used by the law makers
when they have held that the Court shall order for an appropriate
valuation of the shares and may offer to sell the said Suit property
at the price so ascertained. Thus, prima facie, it appears that the
law makers were certain when they have enacted the said
provisions that in the event of a claim of right to preemption, the
interest of the said person who seeks right for preemption is
protected as far as possible.
22. At this juncture it is relevant to take note of the decision of
the Hon'ble Supreme Court in the case of Rani Aloka Dudhoria
and others vs. Goutam Dudhoria and others 1 wherein the
Hon'ble Supreme Court dealing with the provisions of the Partition
Act in paragraph Nos.46, 48, 49, 53, 56, 57 and 58 has held as
under:
"46. The core question which arises for our
consideration is as to whether the said purported
auction was held dehors the provisions of the Partition
Act, 1893 or in accordance therewith. Indisputably the
property situated at Netaji Subhas Road, Calcutta, is a
double-storeyed building on a land measuring 12 ½
cottah. It is situated at a prime location. Rajbari at
Azimganj has been constructed on a land measuring
more than 4 bighas. The building consists of more than
100 rooms. Indisputably again a large number of joint
movable properties situate therein. The property known
as Dharamshala at Azimganj also has a double-storeyed
building situate on 1 bigha of land approximately.
1 (2009) 13 Supreme Court Cases 569
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48. Section 2 of the Partition Act, 1893 provides that
whenever in a suit for partition in which, if instituted
prior to the commencement of the Act, a decree for
partition might have been passed, 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
property and distribution of the proceeds would be more
beneficial for all the shareholders, the court may, direct
sale thereof subject to the condition that the request
therefor had come from a shareholder or shareholders
interested individually or collectively to the extent of one
moiety or upwards. What therefore was necessary is
that there should be a request from a shareholder; a
formal prayer to that effect may not be necessary; a
positive finding that the property is incapable of division
by metes and bounds (sic not) be necessary and that the
property cannot be reasonably or conveniently be
partitioned.
49. Section 3 of the Act envisages sale of the property
within the shareholders. It, unlike the provisions of the
Code of Civil Procedure does not debar a shareholder
from taking part in auction inter alia on the premise
that the shareholder may be interested in keeping the
property to himself. A balance must be struck in regard
to the individual interest of the shareholder having
regard to the conflicting interest in the respective bids
vis-a`-vis the value of the property.
53. Sub-section (2) of Section 3 mandates valuation to
be made by the court at which a sale of the share or
shares can be directed to be made only when the
highest price is offered to be paid by another co-sharer.
Sub- section (3) of Section 3 thereof provides that if no
shareholder is willing to buy share or shares at the price
so ascertained, the applicant or applicants shall be
liable to pay all costs of or incidental to the application
or applications, which leads to the conclusion that in
the absence of predetermining valuation in regard to the
half-share of the properties, the properties in question
could not have been put to auction-sale.
56. As regards construction of Section 3 of the Act it
was held: (R. Ramamurthi Iyer case, SCC p. 730, para 13)
"13. ...The language of Section 3 of the Partition Act
does not appear to make it obligatory on the court to
give a positive finding that the property is incapable of
division by metes and bounds. It should only 'appear'
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that it is not so capable of division. It has further been
contended that the respondent had maintained
throughout that the property was capable of division. He
could not, therefore, take advantage of the provisions of
the Partition Act."
(See also Sathi Lakshmana KC v. P.C. Mohandas and
Rukmani v. Uday Kumar.)
57. Our attention has been drawn to a decision of this
Court in Badri Narain Prasad Choudhary v. Nil Ratan
Sarkar, [(1978) 3 SCC 30]. Therein while opining that
Sections 2 and 3 of the Partition Act are interlinked,
having regard to the fact that the property being small
could not conveniently and reasonably be partitioned
without destroying its intrinsic wealth, this Court
evolved an equitable method to take the value of the
property as Rs 50,000 in 1963 and allowed a reasonable
increase for the rise in price since 1963, taking into
account the rise in price in the locality, and gave the
defendant the first option to retain the whole property
on payment of 13/16th share of that valuation
(including the increase) to the plaintiffs within a period
of specified therein. The said decision does not lay down
any legal principle. In any event it has no application to
the facts of the present case, keeping in view the extent
of the properties, as indicated by us heretobefore. We
may furthermore notice that therein unfortunately
attention of this Court was not drawn to the decision of
this Court in K. Ramamurthi Iyer. It was urged before
us that such a question having never been raised, this
Court should not permit the same to be raised before
this Court for the first time. It, however, appears that
the plaintiffs/appellants raised the said contention in
the grounds of appeal. Though raised, the same had not
been considered by the Division Bench.
59. In view of the decision of this Court in K.
Tamamurthi Iyer, neither any aforementioned
application was necessary nor any specific finding
thereto was imperative. Once it is held that the
provisions of the Partition Act are applicable, the court
was bound to comply with the provisions thereof. If that
is the legal principle, on interpretation of the Partition
Act as also from the decision of this Court, it must be
held that the Commissioner of Partition and the High
Court failed to comply with the said provisions."
::15::
23. A similar view was also taken by the Hon'ble Supreme Court
in the case of R. Ramamurthi Iyer vs. Raja V. Rajeswara Rao 2,
wherein it held at paragraph Nos.11, 12 and 13 as under:
11. A question which presents a certain amount of
difficulty is at what stage the other shareholder acquires
a privilege or a right under Section 3 when proceedings
are pending in a partition suit and a request has been
made by a co-owner owning a moiety of share that a
sale be held. One of the essential conditions for the
applicability of Section 2 of the Partition Act is that it
should appear to the court that a division of the
property cannot reasonably or conveniently be made. To
attract the applicability of Section 3 all that the law
requires is that the other shareholder should apply for
leave to buy at a valuation. Once that is done the other
matters mentioned in Section 3(1) must follow and the
court is left with no choice or option. In other words
when the other shareholder applies for leave to buy at a
valuation the share of the party asking for a sale the
court is bound to order valuation of his share and offer
to sell the same to such shareholder at a price to be
ascertained.
12. Coming back to the question of withdrawal of a suit
in which the provisions of Sections 2 and 3 of the
Partition Act have been invoked we find it difficult to
accede to the contention of the appellant that the suit
can be withdrawn by the plaintiff after he has himself
requested for a sale under Section 2 of the Partition Act
and the defendant has applied to the court for leave to
buy at a valuation the share of the plaintiff under
Section 3. In England the position about withdrawal has
been stated thus, in the Supreme Court Practice, 1970
at p. 334:
"Before Judgment.-- Leave may be refused to a plaintiff
to discontinue the action if the plaintiff is not wholly
dominus litis or if the defendant has by the proceedings
obtained an advantage of which it does not seem just to
deprive him."
As soon as a shareholder applies for leave to buy at a
valuation the share of the party asking for a sale under
Section 3 of the Partition Act he obtains an advantage in
that the court is bound thereafter to order a valuation
and after getting the same done to offer to sell the same
2 (1972) 2 Supreme Court Cases 721
::16::
to such shareholder at the valuation so made. This
advantage, which may or may not fulfil the juridical
meaning of a right, is nevertheless a privilege or a
benefit which the law confers on the shareholder. If the
plaintiff is allowed to withdraw the suit after the
defendant has gained or acquired the advantage or the
privilege of buying the share of the plaintiff in
accordance with the provisions of Section 3(1) it would
only enable the plaintiff to defeat the purpose of Section
3(1) and also to deprive the defendant of the above
option or privilege which he has obtained by the plaintiff
initially requesting the court to sell the property under
Section 2 instead of partitioning it. Apart from these
considerations it would also enable the plaintiff in a
partition suit to withdraw that suit and defeat the
defendant's claim which, according to Crump J., cannot
be done even in a suit where the provisions of the
Partition Act have not been invoked.
13. In the argument of the learned counsel for the
appellant emphasis has been laid on the fact that in the
present case the court did not give any finding that the
property was not capable of division by metes and
bounds. It is thus pointed out that the essential
condition for the application of Section 2 of the Partition
Act had not been satisfied and Section 3 cannot be
availed of by the respondent unless it had first been
found that the property could be put to sale in the light
of the provisions of Section 2. This submission has
hardly any substance inasmuch as the trial court had
prima facie come to the conclusion that a division by
metes and bounds was not possible. That was sufficient
so far as the proceedings in the present case were
concerned. The language of Section 3 of the Partition
Act does not appear to make it obligatory on the court to
give a positive finding that the property is incapable of
division by metes and bounds. It should only "appear"
that it is not so capable of division. It has further been
contended that the respondent had maintained
throughout that the property was capable of division. He
could not, therefore, take advantage of the provisions of
the Partition Act. Further he never made any proper
application invoking the provisions of Section 3 of the
Partition Act and all that he said in his written
statement, was that in case the court held that the said
property was incapable of division into two shares he
was ready and willing to buy the plaintiff's share in the
suit at a valuation to be made in such a manner as the
court might think proper. In our opinion, this was
sufficient compliance with the requirement of Section 3
of the Partition Act. Section 3(1) does not contemplate a
formal application being filed in every case. The words
::17::
employed therein simply mean that the other
shareholder has to inform the court or notify to it that
he is prepared to buy at a valuation the share of the
party asking for sale. In the written statement even if it
was maintained that the property was not capable of
division by metes and bounds the alternative prayer was
necessarily made in para 7 which would satisfy the
requirements of Section 3 of the Partition Act."
24. In the case of Malati Ramchandra Raut (Mrs) and others
vs. Mahadevo Vasudeo Joshi and others 3 again dealing with the
provisions of the Partition Act, the Hon'ble Supreme Court in
paragraph No.9 has held as under:
"9. It is the duty of the court to order the valuation of
the shares of the party asking for a sale of the property
under Section 2 and to offer to sell the shares of such
party to the shareholders applying for leave to buy them
in terms of Section 3 at the price determined upon such
valuation. As soon as a request for sale is made by a
shareholder under Section 2, any other shareholder
becomes immediately entitled to make an application
under Section 3 for leave tot buy the shares of the
former. The right to buy having thus arisen and become
crystallised, the date with reference to which valuation
of the shares in question has to be made is the date on
which the right arose."
25. In the given legal position as has been laid down by the
Hon'ble Supreme Court and also on due consideration of the
provisions of Section 2 and Section 3 of the Partition Act, what
clearly gets culled out is that, what is necessary for the Court to
consider is as to what would be the most beneficial step for
redressal of the grievance of the parties i.e. of the shareholders to
the said property and also take a decision by which the property
3 1991 Supp (1) Supreme Court Cases 321
::18::
fetches maximum price, so that each of the shareholders fetch
maximum from the said property.
26. From the Advocate Commissioner's report one thing stands
established that the Suit schedule A property is not one which is
divisible in terms of the order passed in the Suit for partition. In
that event only solution is to put the property for sale by way of
auction. However, in terms of Section 3 if any of the shareholders
or more than one of the shareholders are interested to retain the
property, in the said event the property has to get valued and the
person or persons who are interested in the said property and also
is a shareholder would be entitled to pay the value of the said
property to the remaining shareholders and can retain the
property. Under the said circumstances, this Court is of the firm
view that the decision of the Court below in rejecting the
application for preemption filed by the petitioners herein was not
justified.
27. What needs to be appreciated is that so far as the plaintiff is
concerned, it now stands settled that he is more interested in
putting the property to sale so that he can get his share by way of
money. If the petitioners herein before the Court below are ready to
pay the plaintiff/petitioner and other shareholders the money
worth their share, it is that what is envisaged in Sub-Section 2 and
Sub-Section 3 of the Partition Act. Therefore, to the aforesaid
::19::
extent, the Court below ought to have accepted the requested
made by the petitioners herein.
28. The only dispute which remains to be seen is whether the
property would fetch Rs.8,00,00,000/- in the market or more than
Rs.8,00,00,000/-. In this context, in the opinion of this Court, it
would had been far more appropriate if the Court below while
allowing the property to be sold by way of auction would have only
put the rider that whatever would be the highest price quoted, the
said price should be first offered to the petitioners herein seeking
their willingness whether they are ready to accept the said price.
Further only on their unwillingness should the auction be finalized
in favour of the highest bidder. If such a decision would have been
taken, it would have met the grievance of the plaintiff/petitioner as
well and would have saved the interest of the petitioners herein
also wherein they intend to retain the Suit schedule property.
29. The Civil Revision Petition to the aforesaid extent stand
allowed. It is ordered that let the Suit schedule A and B properties
be put to auction and the price quoted by the highest bidder
should be made available to the two petitioners herein seeking
their willingness to purchase the said property at the highest price
quoted by the bidder. That only in the event of the refusal by the
petitioners should there be continuation of the auction
proceedings and the same be finalized in favour of the highest
::20::
bidder. Let the matter now be placed before the Court below afresh
for a suitable direction to the Advocate Commissioner by fixing a
fresh date for auction of the Suit schedule properties and the same
be finalized in terms of the directions given by this Court in the
preceding paragraphs.
30. No order as to costs.
31. As a sequel, miscellaneous petitions pending if any, shall
stand closed.
__________________
P.SAM KOSHY, J
Date: 22.03.2024
Note: LR copy to be marked: Yes
B/O. GSD
