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2001 DIGILAW 644 (KAR)

VALLI UBEIDULLA v. VALLI MUSTAFA

2001-08-16

S.MOHAN, SHIVARAJ V.PATIL

body2001
KUMAR, J. ( 1 ) A preliminary decree for partition and separate possession came to be passed in O. S. 261/91. Thereafter, an application was filed for passing of the final decree. A commissioner was appointed. The commissioner submitted a report stating that item No. 1 has to be divided into 72 shares and item No. 2 has to be divided into 576 shares and therefore the properties are not partible. Taking into consideration the non-feasibility to effect the division of the suit properties according to the terms of the preliminary decree and also taking note of the report of the Court Commissioner the Court by its order dated 21. 6. 1999 has Bordered the Commissioner to sell the suit schedule properties among the sharers by conducting auction and directed that the sale proceeds be divided in terms of the preliminary decree, among the sharers. It Is further ordered that in the event the sharers are not willing to contest in the sale proceedings then the property could be sold in public auction. It is in pursuance of the said order Court Commissioner conducted the auction on 30. 3. 2000 and the parties to the suit participated in the said sale, Respondent No. 6 Valli Ubedulla was the highest bidder for three lots of properties and the highest bid for lot No. 1 is Rs. 9,70,000. 00 for lot No. 2 rs. 16,00,000. 00 and for lot No. 3 Rs. 1,11,000. 00. Calculating the one-fourth bid amount after deducting the share of the sixth respondent, the Court Commissioner directed the 6th respondent to pay one fourth amount by 12. 00 noon on 31. 3. 2000. The Commissioner thereafter reported to the Court that the 6th respondent failed to pay the bid amount within the stipulated time. After taking note of the memo filed by the Commissioner the court directed the 6th respondent to deposit one fourth amount on 12. 4. 2000 or latest by next day and he was further directed to deposit the remaining amount immediately after the reopening of the Court after vacation and the case was posted to 23. 5. 2090. On 23. 5. 2000 6th respondent deposited one fourth amount and sought for extension of time to deposit the remaining three-fourth bid amount. 4. 2000 or latest by next day and he was further directed to deposit the remaining amount immediately after the reopening of the Court after vacation and the case was posted to 23. 5. 2090. On 23. 5. 2000 6th respondent deposited one fourth amount and sought for extension of time to deposit the remaining three-fourth bid amount. Though the other parlies to the proceedings did not file any objections and orally oppose the Court below rejected the said application holding that the reasons given for extension of time is not satisfactory. It is against the said order the present revision is filed. ( 2 ) LEARNED Counsel for the petitioner contends when the six the respondent has deposited one fourth bid amount and only sought for extension of time to deposit the remaining amount, when the other parties to the proceedings are not opposing the said application, the Court below committed an error in not extending the time sought for. Therefore, he submits the impugned order is liable to be set aside and he may be permitted to deposit the balance amount. In support of his contention he also relies on a judgment df the Andhra pradesh High Court in the case of BARATAM SATYANARAYANA vs bharatam KANTHARAO AND OTHERS. ( 3 ) LEARNED Counsel for the respondents has no objection for granting a reasonable time to the petitioner to deposit the remaining balance amount so that the sale proceeds could be distributed among the other sharers. ( 4 ) FROM the facts narrated supra it is clear that order passed by the Court below directing the Commissioner to sell the suit schedule properties is an order passed under Section 3 of the Partition Act of 1893. Section 7 of the said Act provides for such sale the Court may adopt the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decree. However, if it is a Court sale in execution of a decree under the provisions of Code of Civil procedure the time frame fixed for paying the said sale consideration has to be adhered to. But if it is a sale under Section 3 of the partition Act, 1893 when the parties consent for extension of time court can extend the time. But if it is a sale under Section 3 of the partition Act, 1893 when the parties consent for extension of time court can extend the time. ( 5 ) IN the a fore said judgment of the Andhra Pradesh High Court it has been held:-"it is true that in the case of public auction conducted under the provisions of the Code of Civil Procedure, the conditions for deposit of the auction amount are absolute and the statute itself provides for resale on default. But the sale of joint property under section 2 and Section 3 are different. Section 2 refers to sale of the entire 'property' and so does section 6 which expressly refers to Section 2. It is true that section 7 dealing with procedure does not refer to Section 2 expressly but it is clear that it refers only to sales under Section 2. This is clear from the opening words of Section 7, which use the words 'save as hereinbefore provided'. Under Section 3, an application is filed thereunder in a proceeding for sale of property under Section 2 and the co-sharer who makes the application under Section 3 offers to buy the 'shares' of the others and there is also no question of his having to buy his own share. He need not buy what he already owns. Section 3 is a self contained provisions and itself speaks of the method of valuation of the shares of others and the sale of those shares. In fact Section 4 (2) refers to Section 3 (2) and describes it is as a provision containing the "procedure" for sale. It is therefore clear that section 7 does not apply to sales under Section 3 and also under section 4. Therefore the provisions of Order 21, Rule 84 C. P. C. which apply to sales under Section 2, cannot apply to sales under section 3 and also under Section 4. It is therefore clear that section 7 does not apply to sales under Section 3 and also under section 4. Therefore the provisions of Order 21, Rule 84 C. P. C. which apply to sales under Section 2, cannot apply to sales under section 3 and also under Section 4. In case of sales under section 3 and Section 4, the sale of the shares of other shareholders in favour of the shareholder applying for purchase, is governed by the self-contained procedure in Section 3 and section 4 only and by such 'necessary or proper directions' as the Court may grant and not by the procedure in Section 7 i. e. the original side Rules of the High Court or the procedure in order 21, C. P. C. or Rule 9 of the Rules made under the Partition act or Rules 193 to 205,of the Civil Rules of Practice. "therefore, it is clear when there is no statutory prohibition for extension of time to enable the purchaser to deposit the balance consideration amount the Court has power to extend the time sought for especially when the other sharers have no objection for extension of time to pay the balance amount. Under these circumstances, the court below was not justified in refusing to extend the time for deposit of the balance amount on the ground no satisfactory cause is shown for extension. By consent of parties the property has been ordered to be sold. One of the sharers wanted to purchase the property and pay the sale consideration to other sharers. He has shown his bona fides by depositing one fourth of the sale consideration. He need not pay for his share in the said property. Under these circumstances, justice of the case would be met by giving sufficient time to the petitioner - 6th defendant to pay the balance consideration within a period of two months from today failing which the property has to be resold. Hence, I pass the following order. Civil Revision Petition is allowed. The impugned order is set aside. Petitioner is permitted to deposit the balance amount within two months from this day failing which the property is to be resold. Parties to bear their own costs.