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2001 DIGILAW 423 (KER)

Santhosh Kumar v. Indira Mohandas

2001-08-03

K.A.MOHAMMED SHAFI

body2001
Judgment :- K.A.Mohamed Shafi, J : This C.R.P having been finally heard on 5.6.2001, the court on 3.8.2001, passed the following : The common order in I.A.Nos. 1543 and 6092 of 2000 in I.A.No.1240 of 1993 in O.S.No.165 of 1987 on the file of the subordinate Judge's Court, Thrissur is under challenge in this revision petitioner. 2. The above suit was filed by the plaintiffs for partition and separate possession of two items of plaint schedule properties. A preliminary decree for partition was passed by the trial court directing partition of item 1 into three shares and item 2 into five shares. The plaintiff filed I.A.1240 of 1993 to pass final decree in terms of the preliminary decree. The lower court issued a commission to effect actual division of properties in accordance with the preliminary decree. The commissioner filed report before the court stating that plaint schedule item 2 which is of an extent of 6 and 38/100 cents with residential building is not feasible for actual division and suggesting sale of that item of property among the sharers. The court permitted sale of that item of property by auction among the sharers. The commissioner conducted the sale and the sale was confirmed in favour of the second defendant for Rs.7,00,000/- being the highest bidder. Accordingly he deposited Rs.5,60,000/- towards the sale price after deducting his one-fifth share out of the bid amount on 21.1.2000. Subsequently, he filed I.A.1543 of 2000 for delivery of possession of item 2 of the plaint schedule properties and I.A.1692 of 2000 to permit him to deposit the non-judicial stamps for executing the sale deed in his favour in respect of item 2 of the plaint schedule properties. The lower court held that Rule 234(3) of the Civil Rules of Practice in Kerala is applicable to the facts of this case and a final decree in respect of all the properties covered by the preliminary decree alone can be passed and hence the prayer made by the petitioner in the above two applications cannot be granted. Accordingly both the applications were dismissed. Hence the second defendant / petitioner has preferred this revision before this court. 3. The counsel for the revision petitioner submitted that rule 234(3) of the Civil Rules of Practice has no application to the facts of this case, since the sale is not under the provisions of Partition Act. Accordingly both the applications were dismissed. Hence the second defendant / petitioner has preferred this revision before this court. 3. The counsel for the revision petitioner submitted that rule 234(3) of the Civil Rules of Practice has no application to the facts of this case, since the sale is not under the provisions of Partition Act. But the respondents have contended that Chapter VI of the Civil Rules of Practice which takes in Rule 234 also applies to sale in all suits for partition and not only to the sale under the provisions of the Partition Act and therefore the lower appellate court is justified in disallowing the claim made by the petitioner to pass a partial final decree in respect of item 2 of the plaint schedule properties and deliver the property to the petitioner. 4. Chapter VI of Kerala Civil Rules of Practice deals with special procedure in particular cases. Part C of Chapter VI deals with partition suits. Rule 234 in Part C of Chapter VI deals with order for sale. Rule 234(3) reads as follows : "The co-sharer purchasing at the sale shall not ordinarily be obliged, to deposit the sale price in court at once and the amount may be debited against him in the final adjustment of accounts in the case if the value of his share in the entire assets will be sufficient to cover the sale price. The court shall record in the proceedings the date and time of sale, the amounts of the several bids, the name of the purchaser and whether the sale price has been deposited or allowed to be retained for future adjustment. The property so purchased shall be allotted in the final decree to the share of the purchaser at the value of the bid confirmed and accepted by the court."* 5. In the decision reported in Unnimadhavan V. Rugmoni Pallikaramma 1980 KLT 892), a Single Judge of this court has held that the rules in O.21 of the code for sales in execution of decrees are not applicable to sales made in pursuance of an order of court under the Partition Act. 6. In the decision reported in Unnimadhavan V. Rugmoni Pallikaramma 1980 KLT 892), a Single Judge of this court has held that the rules in O.21 of the code for sales in execution of decrees are not applicable to sales made in pursuance of an order of court under the Partition Act. 6. In the decision reported in Abdulla Haji V. Kunhamina 1960 KLT 1358) this court has held that for the application of section 2 of the Partition Act, the entire property in the suit should be ordered to be sold and section 9 of the Partition Act will commence operation where there are two parcels, one capable of division and the other incapable of division and in such cases court can direct the partition of one parcel and the sale of the other. 7. In the decision reported in Anthony Ammal V. Antony 1983 KLT 645), this court has observed as follows : "What the court has to see is that there is a just partition. In all cases where the property, or properties, is incapable of partition by metes and bounds, the court is not without powers to resort to a feasible method just and equitable in the circumstances of the case, The Partition Act does not take away this power the court has. In this case even though the application for final decree has been made by the fifth defendant-respondent, who has only less than a moiety, it cannot be said that the court was in the wrong in accepting the report of the commissioner to sell the property by auction among the sharers. But the further question is whether the sale is to be conducted in open court or by the commissioner as directed by the court. Rule 234 of the Civil Rules of Practice insists that in the case of a sale among the sharers only the sale is to be conducted in open court. The order sought to be reviewed by the petitioner before the court below was passed, ignoring the above Rule 234 as the sale proposed by the commissioner is one to be conducted by him. Simply because the commissioner is an officer of the court, it does not mean that a sale by him will be a sale in open court as insisted by Rule 234(2) of the Civil Rules of Practice."* 8. Simply because the commissioner is an officer of the court, it does not mean that a sale by him will be a sale in open court as insisted by Rule 234(2) of the Civil Rules of Practice."* 8. From the above decision it is clear that the court has got power to sell the property sought to be partitioned if it is found not feasible for partition by metes and bounds by directing sale of the property in auction between the parties. In this case, it is admitted by both sides that the sale was not as per the provisions of the Partition Act and the sale was ordered by the court by exercising its inherent powers to effect a just and equitable partition of the suit property. 9. It is to be noted that in suits for partition of several items of properties, more than one preliminary decree as well as final decree can be passed. In the decisions reported in Babburu Basavayya V. Babburu Guravayya 1951 AIR(Madras) 938) and in Indradeo Prasad Singh V. Sheonath Prasad Singh 1980 AIR(Patna) 201), the full benches of Madras High Court and the Patna High Court have held that there can be more than one preliminary decree as well as final decree in partition suits. 10. In the decision reported in B.N.Thiagarajan V. Sundaravelu 1972 AIR(Madras) 216), a single Judge of the Madras High Court held that in a partition suit comprising various items more than one final decree can be passed but in respect of each item there can be only one final decree. It is also held that mesne profits accruing from the property is not a separate item for partition and therefore there cannot be a separate final decree one concerning the property and another concerning mesne profits. 11. The counsel for the respondent submitted that since the final decree proceedings are pending and the Commissioner's report with regard to the partition of item 1 of the plaint schedule properties is under consideration before the trial court and the share of profits due to and payable by each sharer in respect of plaint schedule properties is to be determined by the lower court, a final decree in respect of item 2 of the plaint schedule properties without determining the liability and quantum of share of profits claimed in the suit cannot be passed. 12. 12. In support of this submissions, the counsel for the respondent has relied upon the decisions reported in Tara Chand V. Shakuntala Devi 1982 AIR(HiMP) 75), and in Bimal Krishna Khanna V. Kamal Nain Khanna 13. The counsel for the petitioner submitted that no claim is made by the plaintiffs for any share of profits in respect of item 2 of the plaint schedule properties and therefore there is absolutely no difficulty in passing a final decree in respect of item 2 of the plaint schedule properties alone. 14. There is nothing on record to show that any share of profits is claimed by the plaintiff in respect of item 2 of the plaint schedule properties but on the other hand the contention of the respondents has been that they are in possession of item 2 of the plaint schedule properties and the revision petitioner is seeking to get delivery of possession of the property from the respondents as the court auction purchaser. It is also not disputed that the lower court has yet to consider the objections raised by different sharers with regard to allotment of item 1 of the plaint schedule properties in terms of the preliminary decree. Therefore the contention of the respondents that final decree in respect of item 2 of the plaint schedule properties cannot be passed in this case since the question of liability and quantum of share of profits in respect of that item is not determined by the court is not sustainable. 15. The contention of the respondents that in the decision reported in 1980 KLT 892, this court has not held that rule 234 of Kerala Civil rules of Practice is not applicable to sales not effected under the partition act is not tenable as it is clear from the observation made in that judgment that this court has held Rule 234(3) of the Civil Rules of Practice is not attracted, is the sale is not under the Partition Act. 16. Even in cases of sale of the property attracting the provisions of Rule 234(3) of Civil rules Practice the highest bidder in the auction sale in whose favour the sale is knocked down need not deposit the entire bid amount and the amount payable by him can be adjusted and the sale price can be retained by him for future adjustments. In this case, it is admitted that the revision petitioner has deposited Rs.5,60,000/- out of the sale price of Rs.7,00,000-deducting his one-fifth share out of the sale price on 21.1.2000. Therefore in equity also, the petitioner is entitled to recover possession of item 2 of the plaint schedule properties as he has become the absolute owner of the property sold in the court auction and he has deposited the entire sale price in court. Therefore the impugned common order passed by the lower court dismissing the applications filed by the petitioner in this case are illegal and unsustainable. Hence the C.R.P is allowed, the impugned common order is set aside and both the application are allowed. The lower court is directed to proceed with further steps in the above applications in accordance with law.