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2005 DIGILAW 1036 (MAD)

Packeer Mohideen @ Meerakkani v. Abdul & Others

2005-07-08

M.THANIKACHALAM

body2005
Judgment :- (Civil Revision Petition filed under Section 115 of the Code of Civil Procedure praying to set aside the order dated 12.11.2003 made in I.A.No.99 of 2003 in O.S.No.155 of 1996 on the file of the Principal Sub Court, Tenkasi.) The plaintiff in O.S.No.155 of 1996 on the file of the Principal Sub Court, Tenkasi is the revision petitioner. 2. The facts leading to this revision are: The revision petitioner, as plaintiff, has filed the suit for partition and separate possession of his 48912/207360 shares in the suit property and obtained a preliminary decree on 4.12.1998, which reached finality. Despite declaration of their shares, the parties have not amicably divided the property by metes and bounds, and therefore, the plaintiff/revision petitioner has filed a petition for passing final decree. The Advocate-Commissioner, who was appointed to effect physical division of the property, considering the measurements and inconvenience, if it is divided, has submitted his report stating that it is not possible to divide the property as per the shares declared in the preliminary decree and the parties have to work out their remedy under the Partition Act (hereinafter called 'the Act'). Thereafter, the revision petitioner/plaintiff has filed I.A.No.490 of 2001 seeking permission of the Court to bring the property for sale as well as to participate in the sale, applying the provisions of the Act. In that I.A., an Advocate-Commissioner was appointed on 26.11.2002 to conduct the sale of the suit property between the plaintiff/revision petitioner and the defendants. The Commissioner had conducted the sale, as directed by the Court, on 14.12.2002, by giving notice on 12.12.2002. 3. In the sale conducted by the Advocate-Commissioner, in his office, on 14.12.2002, the revision petitioner alone had participated, whereas the respondents/defendants have not participated. Since the sale was ordered to be conducted between the parties to the suit, no third party also had participated. In the absence of any other counter claim by the other sharers, the revision petitioner alone offered to purchase the entire property for Rs.3 lakhs, which was, without any demur, accepted by the Commissioner. The Commissioner, deducting the amount due towards the share of the revision petitioner/plaintiff, has directed the plaintiff/revision petitioner to pay the balance of sale consideration of Rs.2,29,236.12 ps. The Commissioner, deducting the amount due towards the share of the revision petitioner/plaintiff, has directed the plaintiff/revision petitioner to pay the balance of sale consideration of Rs.2,29,236.12 ps. Out of this amount, a sum of Rs.1,60,000/= was paid immediately and for the payment of the balance, the Commissioner has granted 15 days time and in pursuance of the time granted, the revision petitioner had also paid the said amount to the Commissioner. Thus, in the auction or sale conducted by the Commissioner, which is said to be one under the Partition Act, the revision petitioner was declared as the successful bidder. The other sharers, viz. the respondents, aggrieved by the sale conducted by the Commissioner, have filed I.A.No.99 of 2003 to set aside the same on the grounds that the Commissioner has failed to send personal notices to them and also failed to inform the place of the sale, that because of this reason, according to the respondents, who are the petitioners in I.A.No.99 of 2003, they were unable to participate in the auction and the plaintiff is said to have purchased the entire property for a meagre sum and in this view, the sale conducted by the Commissioner and the purchase made by the revision petitioner, on 14.12.2002, have to be set aside. 4. The revision petitioner has opposed the said application contending that in the sale conducted by the Commissioner on 14.12.2002, participating, he had purchased the property for the higher price, which cannot be set aside in the absence of any valid grounds, that sale notice was given even on 12.12.2002 and therefore, if the date was inconvenient, the respondents herein ought to have objected the same, which they did not do so, that the property is not worth Rs.7 lakhs as falsely claimed by the respondents and that no reasonable ground is urged, including any defect in the conduct of the sale, and in this view, the sale is not liable to be set aside. 5. 5. The respondents herein, by filing a reply counter, would contend that the Commissioner ought to have given 15 days notice, which he failed, that the sale held on 14.12.2002 is not, so far, confirmed, that the purchaser/revision petitioner has not obtained the permission of the Court to purchase the entire property, that before the sale, no upset price was fixed either by the Court or by the Commissioner, that the sale was not conducted as per the procedure contemplated under Section 7 of the Act and that the purchaser has not deposited the entire amount forthwith before the Commissioner, since he has no right to deduct the amount towards his share. In this view, they would say, the sale conducted by the Commissioner is void. 6. In the additional counter, the revision petitioner had stated that there is no Rule that Commissioner should fix the value for the property before the sale and in the same way, there is no Rule also that before sale, 15 days time should be given, whereas the Commissioner has conducted the sale properly, which is not liable to be set aside. 7. On the basis of the above pleadings, the parties have urged their case and counter case before the Principal Subordinate Judge, Tenkasi. The learned Subordinate Judge, by going through the provisions of Order 21 Rule 66 CPC and relying upon a decision quoted by the respondents herein, came to the conclusion that the sale was not properly conducted by the Commissioner and therefore, the same should be set aside. Thus taking the view, the sale conducted by the Commissioner on 14.12.2002 was ordered to be set aside by the lower Court, which is sought to be assailed in this revision petition. 8. Heard Mr.S.Ramesh @ Ramaiah, learned counsel appearing for the revision petitioner. No representation for the respondents despite service. 9. Mr.S.Ramesh @ Ramaiah, learned counsel appearing for the revision petitioner, submitted that the provisions of Order 21 Rule 66 CPC are not applicable to the sale conducted by the Commissioner under the Partition Act, and therefore, non-compliance of the provisions of the CPC, if any, certainly will not vitiate the sale conducted otherwise properly under the Act. 9. Mr.S.Ramesh @ Ramaiah, learned counsel appearing for the revision petitioner, submitted that the provisions of Order 21 Rule 66 CPC are not applicable to the sale conducted by the Commissioner under the Partition Act, and therefore, non-compliance of the provisions of the CPC, if any, certainly will not vitiate the sale conducted otherwise properly under the Act. It is the further submission of the learned counsel for the revision petitioner that no personal notice is required in this case and the notice served upon the counsel for the respondents is sufficient and therefore, the sale sought to be set aside on the ground that no personal notice was served upon the other sharers, is untenable. In support of the above contention, relying upon certain provisions as well as certain rulings, he advanced torrent, vehement and forcible arguments to set aside the order of the trial Court. 10. By going through the provisions of the Partition Act, Rules made applicable to the sale to be conducted under the Act, the notice contemplated for conducting the sale, I am of the firm and considered opinion, the submissions made by the learned counsel for the revision petitioner are unacceptable since they are not only against the provisions of the Act, but also against the principles of natural justice, which should be followed in a case of partition not affecting the interest of the other sharers also, that too when the minor sharer is attempting to take away the entire property, detriment to the interests of other major sharers. In this context, we have to see the provisions of the Partition Act and certain provisions of the CPC. 11. As seen from the typed set furnished to me, it is not known under which provision of the Act, I.A.No.99 of 2003 was filed seeking the relief. In the same manner, it is also not made known, under what provision of the Act, I.A.No.490 of 2001 was filed, to bring the property for sale. As seen from I.A.No.490 of 2001, the prayer is 'applying the provisions of the Partition Act, as per the value given for the scheduled property, the same should be brought for sale'. Therefore, we have to see under what provision, this petition should have been filed. 12. Section 2 of the Partition Act, 1893, confers power on the Court to order sale, instead of division in partition suits. Therefore, we have to see under what provision, this petition should have been filed. 12. Section 2 of the Partition Act, 1893, confers power on the Court to order sale, instead of division in partition suits. According to this provision, 'if a division of the property cannot reasonably or conveniently be made, the Court can order sale of the property and distribution of the proceeds to the shareholders.' This provision could be invoked on the request of any one of the shareholders interested, individually or collectively, to the extent of one moiety or upwards, with a direction to sell and distribute the proceeds. Therefore, while filing I.A.No.490 of 2001, Section 2 of the Act alone should have been invoked. When the family property is brought for sale, when it is indivisible, it is the cardinal principle that the sale should be conducted, at the first instance, only between the sharers, not allowing any third party to enter into. 13. Section 3(1) of the Act contemplates procedure when sharer undertakes to buy, which reads: "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." Thus, it is clear, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the property. Here, the word 'shall' should be construed as a mandatory one, failing which, the Commissioner, who was directed to conduct the sale, may not be in a position to fix the upset price or reserve bidding. In case, if the Court, which ordered to sell the property under Section 2 of the Act, failed to comply Section 3 in fixing the valuation of the share, then, it should be construed that the sale was not properly conducted, giving room or chance to question the same, if possible, giving ways to set aside the same also. This is evident from the reading of Section 6 of the Act, which reads: "6. This is evident from the reading of Section 6 of the Act, which reads: "6. Reserved bidding and bidding by shareholders - (1) Every sale under Section 2 shall be subject to a reserved bidding, and the amount of such bidding shall be fixed by the court in such manner as it may think fit and may be varied from time to time. (2) On any such sale, any of the shareholders shall be at liberty to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase-money or any part thereof instead of paying the same as to the court may seem reasonable. (3) If two or more persons, of whom one is a shareholder in the property, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder." Thus, unless 'reserved bidding' or, which should be called, 'upset price', was fixed by the Court, there is every possibility of malpractice to knock-down the property for the value fixed by one of the parties, in the absence of other parties, detriment to the interests of other sharers also. Only to avoid this kind of situation, where the provisions of Order 21 CPC were not made applicable, in the Act itself, provision is made for fixing reserved bidding. Therefore, if Section 6 of the Act was not complied with by the Court, while ordering sale between the sharers and the Commissioner who is acting on the authority of the Court also failed to fix the upset price, then it should be held, the sale was not properly conducted. It is so because, taking advantage of the absence of other sharers, in a way avoiding them also, one sharer, who is actually participating, may fix his own price and knock down the property, since there is no party to counter the price. To avoid this kind of unhealthy practice, which is possible, while prescribing the procedure, the Legislators have thought it fit to mandate the Court to fix the price which is called the 'reserved bidding'. To avoid this kind of unhealthy practice, which is possible, while prescribing the procedure, the Legislators have thought it fit to mandate the Court to fix the price which is called the 'reserved bidding'. In this case, for the reasons I am going to advert infra, as seen from the Commissioner's report, neither the Court nor the Commissioner has fixed any price either regarding the shares of the plaintiff or regarding the shares of the other side, thereby giving easy walkover to the party who participated in the sale, some way not properly informing even the date of sale or the place of sale to the other side. 14. Section 7 of the Act prescribes 'procedure to be followed in case of sales' under the Act and the relevant provision applicable to the sale on hand is Section 7(b), which reads: "if the property be sold under a decree or order of any other court, such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees." 15. On the strength of the power conferred upon the High Court, under the above said provision, this Court has framed Rules and they are found in Chapter III of Part II of the Civil Rules of Practice, as observed in THE OFFICIAL RECEIVER, SALEM vs. C.B.SAMANTHAGAM AMMAL AND OTHERS [(1979) II MLJ 115]. Rule 9 in Chapter III provides, 'if, under the Partition Act, 1893, or otherwise, the sale of any property is ordered, an order for sale shall be made and the subsequent proceedings shall be conducted in manner prescribed by Rules 193 to 205 of Chapter IX, Part I, as far as the same are applicable' (emphasis supplied). 16. Rule 196 of the Civil Rules of Practice guides, how, in this kind of cases, sale should be conducted. 16. Rule 196 of the Civil Rules of Practice guides, how, in this kind of cases, sale should be conducted. The submission of the learned counsel for the revision petitioner that this provision is applicable only to public sale and not for the private sale which is sought to be conducted between the sharers, is not acceptable to me since the High Court, by virtue of the power conferred under Section 7(b) of the Act, had made applicable, to this kind of sales also, the provisions of Rules 193 to 205 of Chapter IX Part I of the Civil Rules of Practice 'as far as the same are applicable'. The words 'as far as the same are applicable' should have much significance in this case and the said words are used cautiously to apply the provisions of the law as far as possible. Therefore, by applying rigidity, it cannot be said that the Rule should be strictly followed or the Rule should not be followed. Considering the nature of the sale, the procedure contemplated even under the Partition Act, certain provisions of the above said Rules should be made applicable, otherwise, there would be no meaning for extending the Rules 193 to 205 of the Civil Rules of Practice for the sale conducted under the Partition Act. Therefore, the Commissioner who was appointed to sell the property under the Partition Act, should have adopted the procedure contemplated under Rule 196 of the Civil rules of Practice, which says, 'the person appointed to sell the property, shall conduct the sale in the manner prescribed by the Code for the sale of attached property....' 17. Order 21 Rule 54 CPC prescribes the mode of 'attachment of immovable property' and the subsequent provisions contemplate the mode of conducting the sale including issuance of notice. Order 21 Rule 54(1A) says, 'the order shall specify the date for the judgment-debtor to attend the Court to take notice of the date to be fixed for settling the terms of the proclamation of sale.' 18. Order 21 contemplates at each and every stage the personal notice as seen from Order 21 Rule 23 and Order 21 Rule 22(1)(c). In this view, if the sale has not been conducted by taking notice to the person concerned, it should be held that there was no proper sale. 19. Order 21 contemplates at each and every stage the personal notice as seen from Order 21 Rule 23 and Order 21 Rule 22(1)(c). In this view, if the sale has not been conducted by taking notice to the person concerned, it should be held that there was no proper sale. 19. Rule 194 of the Civil Rules of Practice prescribes, how the proclamation of sale has to be made and how the sale should be adjourned fixing the date etc. When the properties sought to be sold between the sharers, though it may not be necessary to draw proclamation, as contemplated under Order 21, even as said under the Partition Act, price should be fixed and date of sale and place of sale should be fixed. Then, it should be informed by notice to the person concerned not to the counsel alone, though he is competent to take notice, which I will discuss infra. 20. In this case, admittedly, notice of sale was given on 12.12.2002 and sale was conducted on 14.12.2002 i.e. within a short period of two days. Though it is said that the counsel for the respondents has been served with the notice, the Commissioner has not produced that notice, which would throw much light whether the counsel for the respondents had received the notice and whether the said notice had fixed the place of sale and other requirements. In the absence of such particulars furnished by the revision petitioner, who supports the sale, it is impossible to say that the Commissioner had conducted the sale as required under law, giving opportunity to the parties to participate in the private sale. The very fact that the notice was given on 12.12.2002 and the sale was conducted on 14.12.2002 itself is sufficient to conclude that the sale was not properly conducted and something has gone wrong, elsewhere. 21. As rightly submitted by the learned counsel for the revision petitioner, Order 3 Rule 3 CPC recognise 'the service of process on a recognised agent', as if the same had been served on the party in person, unless the Court otherwise directs. Order 3 Rule 5 further makes it clear, 'any process served on the Pleader who is appearing for the party shall be presumed to be duly communicated and made known to the party whom the Pleader represents' and the relevant provision reads: "5. Order 3 Rule 5 further makes it clear, 'any process served on the Pleader who is appearing for the party shall be presumed to be duly communicated and made known to the party whom the Pleader represents' and the relevant provision reads: "5. Service of process on pleader – Any process served on the pleader who has been duly appointed to act in Court for any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person. Explanation: Service on a pleader who does not act for his client, shall not raise the presumption under this rule." 22. Placing reliance upon the above said provisions and seeking aid from the decision in NILKANTHA SIDRAMAPPA NINGASHETTI vs. KASHINATH SOMANNA NINGASHETTI AND OTHERS ( AIR 1962 SC 666 ) as well as FOOD CORPORATION OF INDIA AND OTHERS vs. E.KUTTAPPAN ( AIR 1993 SC 2629 ), the learned counsel for the revision petitioner has urged that the communication of the information of the sale to the counsel on record for the respondents is sufficient compliance of service and therefore, construing as if no notice has been served upon the other sharers and setting the sale is not legal. 23. By going through the above said two judgments deeply and considering the facts involved therein as well as facts on hand, my humble opinion is that the dictum laid down by the Apex Court in the above said cases will not come to the aid of the revision petitioner herein. 24. In the cases involved in the above two decisions, the question which arose for consideration before the Apex Court was 'whether there was sufficient compliance with the requirements of Section 14(2) of the Arbitration Act with respect to the giving of notice to the parties concerned about the filing of the Award where the parties have authorised their counsel specifically to act on their behalf where the personal attendance of the parties was not so essential'. On the other hand, in the case on hand, the presence of the parties at the time of the conduct of the sale is a must. Therefore, unless the parties are personally informed or it is made known that the parties were at least informed by their counsel, it cannot be presumed that there was proper compliance of notice before conducting the sale, fixing the place, date and time. As said above, the Commissioner, who has filed the report, as per the typed set supplied to me, appears to have not filed the notice given to the counsel for the respondents. 25. The submission of the learned counsel for the revision petitioner that the notice given to the counsel on record was not disputed, is not acceptable to me, considering the facts and circumstances of the case. In this view, in a case of sale of immovable property, where the personal participation of the parties is required, no presumption could be raised as if service of the notice to the counsel on record is the service of the notice to the party and that is why, in my considered opinion, in the execution proceedings, at each and every stage, personal notices are ordered, generally. Even assuming that notice to counsel shall be presumed as the notice to the party, applying the same, the claim of the respondents herein cannot be rejected considering the short period and the absence of service of personal notice, whether it is on 12.12.2002 or subsequently, before the sale on 14.12.2002. Whatever may be the service, since no sufficient and reasonable time has been given for the parties to prepare themselves for the actual participation in the sale, collecting amounts etc., it should be held, with certainty, that there was no proper notice in this case while conducting the sale by the Commissioner and in this view, the sale is liable to be set aside, invoking the inherent power of the Court and the failure will end in failure of justice, resulting in loss and damage to the other sharers here, being the major sharers. 26. In THE OFFICIAL RECEIVER, SALEM vs. C.B.SAMANTHAGAM AMMAL AND OTHERS [ (1979) 2 MLJ 115 ], this Court had the occasion to deal with the sale coming under the Partition Act. 26. In THE OFFICIAL RECEIVER, SALEM vs. C.B.SAMANTHAGAM AMMAL AND OTHERS [ (1979) 2 MLJ 115 ], this Court had the occasion to deal with the sale coming under the Partition Act. It is said in the above ruling 'under the Partition Act itself, there are two types of sales, one, internal sale between the co-sharers where public participation is prohibited and two, where the properties ordered to be sold in public auction.' This ruling is not an authority to say that all the provisions of CPC are not made applicable whereas it is an authority to say that Rules 193 to 205 of Chapter IX Part I of the civil Rules of Practice are made applicable as far as the same are applicable, which I have already adverted to above. Therefore, for certain limited purpose, the provisions of Civil Rules of Practice should be made applicable, which in turn, make applicable, the provisions of Order 21 CPC, to the sale conducted under the Partition Act also. Thus, in my considered opinion, there is no total prohibition or bar in applying certain provisions of Order 21 CPC to the sale conducted under the Partition Act. Depending upon the facts and circumstances of the case, certain provisions have to be made applicable as per the Rules 193 to 205 of the Civil Rules of Practice coupled with the inbuilt provisions under the Partition Act wherein also guidance was given for the conduct of the sale. 27. Even if the case comes under Section 6 of the Act, it is doubtful whether it will cover only the public sale since it also says 'every sale under Section 2 shall be subject to reserve bidding'. Section 2 of the Act contemplates 'sale instead of division in partition suits between the sharers, which should be private sale between the parties.' 28. As seen from the Commissioner's Report, he has not given sufficient or reasonable time before the property was brought to sale. He has also not informed the place of sale, though he has stated that he conducted the sale in his office. It is also not known from the Commissioner's report, how the entire property was ordered to be sold since there is a possibility of fixing the value of the share or shares as contemplated under Section 3 of the Partition Act, which is also not followed. It is also not known from the Commissioner's report, how the entire property was ordered to be sold since there is a possibility of fixing the value of the share or shares as contemplated under Section 3 of the Partition Act, which is also not followed. The revision petitioner, who wants to support the sale, also failed to produce the notice which he might have received, which would throw much light upon the mode of conduct of the sale and admittedly also, no reserve bidding was fixed, either by the Court or by the Commissioner. In the absence of the above said mandatory requirements, whether it is under the Partition Act or under CPC, the sale has been conducted detriment to the interests of the other sharers, which certainly requires to be set aside, as rightly done by the trial Court, though for some other reasons. 29. For the foregoing reasons, in the final conclusion reached by the trial Court, I do not find any infirmity in setting aside the sale in order to have a fresh sale, which should be confirmed. By applying the natural justice and equity also, in my considered opinion, the sale should be set aside. According to the respondents, the property is worth about Rs.7 lakhs whereas the property was sold only for Rs.3 lakhs. It is also seen, immediately the purchaser has not deposited the entire sale price. Where from the Commissioner derived the power to give time to the revision petitioner for payment balance of sale consideration, is not known and in this aspect, the Commissioner has exceeded his limit by ordering the minor sharer to take the entire property ignoring the major sharers. There is no material that the major sharers had direct knowledge about the place and date of sale etc. Under the above said circumstances, after setting aside the said sale, if the sharers are allowed to participate in the sale, which shall be inducted, according to law prescribed and as said supra, it would be beneficial to all the sharers since the bid may bring benefit to all the sharers, which should not be curtailed. 30. For the foregoing reasons, the above revision petition fails. 30. For the foregoing reasons, the above revision petition fails. In the result, this revision petition fails and the same is dismissed confirming the order dated 12.11.2003 made in I.A.No.99 of 2003 in O.S.No.155 of 1996 on the file of the Principal Sub Court, Tenkasi. No costs Consequently, C.M.P.No.2644 of 2004 is also dismissed.