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2012 DIGILAW 790 (KAR)

Mushtaq Ahmed v. Sowbhagya W/o Muniraju Major

2012-09-20

A.S.BOPANNA

body2012
JUDGMENT A.S. Bopanna , J.—The appellant herein is assailing the order dated 06.07.2010 passed in FDP No. 16/2010 and all the consequential proceedings in FDP No. 16/2010. By the said order, the Court below has ordered the auction sale of the petition subject property. The appellant herein was not a party to the said FDP proceedings, but he has filed impleading application therein which is pending consideration Hence, the instant appeal was filed along with an application (IA No. 2/2012) seeking leave to prosecute the appeal which has been allowed by this Court on 11.04.2012. Accordingly, the appeal is taken on board of this Court. The facts in a nutshell which has resulted in the instant appeal is that a suit in O.S. No. 2155/ 1984 was filed by respondent No. 1 herein to which respondents No. 1 to 4 were defendants No. 2 to 5. Their father was impleaded as defendant No. 6 and the sale made by defendant No. 6 to defendant No. 1 therein on 07.07.1980 was questioned as being not valid and the plaintiffs therein sought for their share. The said suit was decreed on 12.07.2002 and on canceling the said sale deed, the respondents No. 1 to 5 herein were granted 1/5th share in the suit properties. During the pendency of the suit, the original defendant No. 1-Albert Shankar died and the legal representatives who had come on record i.e., his wife and daughter sold the western half of the property to Smt. Naseema Fathima, wife of Sri Merajuddin Patel under the sale deed 31.07.1998. On the same day, by another sale deed, the Eastern half of the property was sold to Sri Merajuddin Patel. The said sale according to them was without disclosing the pendency of the suit. 2. The said Sri Merajuddin Patel and his wife on coming to know of the judgment and decree passed in O.S. No. 2155/1984 when FDP No. 51/2003 was filed by respondent No. 5 herein, filed an appeal before this Court in RFA No. 1221/2002 with leave of the Court thereby assailing the judgment and decree dated 12.07.2002 passed in O.S. No. 2155/1984. This Court by its judgment dated 12.06.2008 did not find reason to interfere with the judgment of the trial Court. This Court by its judgment dated 12.06.2008 did not find reason to interfere with the judgment of the trial Court. However, since it was contended that respondents No. 1 to 4 herein had reached certain arrangement with defendant No. 1 in the suit, the appellants in RFA No. 1221/2005 i.e., Sri Merajuddin Patel and his wife were reserved the liberty to pursue their remedy in the final decree proceedings by clarifying that the arrangement would not bind the plaintiff The equities were also permitted to be worked out. The appellant herein Sri Mushatq Ahmed claims that he had been kept in the dark of all these proceedings. Accordingly, he purchased the property from Sri Merajuddin Patel and his wife under a sale deed dated 03.09.2009, secured Khatha entries and also plan for construction and while undertaking construction, respondents No. 6 to 8 herein claiming to be the auction purchasers in FDP No. 16/2010 attempted to take possession. At that stage, the appellant verified and learnt from Sri Merajuddin Patel that he had settled the claim of respondent No. 5 herein in FDP. No. 51/2003 and since the claim of respondents No. 1 to 4 herein had been settled earlier there could be no claim from them in respect of the property. The appellant herein accordingly filed an impleading application in the pending FDP No. 16/2010 and has also assailed the order impugned and the further proceedings therein in this appeal. 3. The respondents have opposed the appeal. The respondents No. 1 to 5 seek to justify their action since according to them, they are entitled to their share decreed in the suit and as such have instituted the FDP for apportionment. In the said proceedings, the procedure as contemplated under the Partition Act is followed and the property is brought to sale. When the sale deed executed by their father has been set aside, no right would flow thereafter. Hence, it is their case that neither the appellant nor his vendors would have any right. Respondents No. 6 to 8 seek to sustain the order of the Court below since according to them the procedure has been followed and they have acted in accordance with the Court order and a huge amount of Rs.1,63,80,000/- has already been deposited and delivery warrant has been issued. Hence they contend that they are entitled to the property. 4. Respondents No. 6 to 8 seek to sustain the order of the Court below since according to them the procedure has been followed and they have acted in accordance with the Court order and a huge amount of Rs.1,63,80,000/- has already been deposited and delivery warrant has been issued. Hence they contend that they are entitled to the property. 4. Heard Sri P.D. Surana, learned counsel for the appellant, Sri S.K. Venkata Reddy, Sri N.R. Naik, Sri P.N. Rajeshwar and Sri D.H. Mokashi, learned counsel appearing for the respective respondents No. 3 & 4, 7, 1 and 6 to 8 and perused the appeal papers including the records received from the Court below. 5. In the light of the rival contentions, the following points arise for consideration, they are; (i) Whether the appeal is liable to be dismissed on the ground that the appellant has not derived any title or by holding that the appellant should assail the order in separate proceedings before the Court below as contended? (ii) Does the order dated 06.07.2010 in FDP No. 16/2010 and its consequential orders relating to auction sale call for interference? 6. The learned counsel for the respondents by referring to the manner in which the father of respondents No. 1 to 5 was appointed as a testamentary guardian would contend that he had sold the property in question without seeking leave of the Court and as such he could not have sold the property. In any event, the Court below in O.S. No. 2155/1984 has set aside the sale deed dated 07.07.1980 executed in favour of late Albert Shanker. As such the sale made by his legal representatives would not convey title to Sri Merajuddin Patel or his wife. Consequent thereof, the appellant would not derive any title. Though Sri Merajuddin Patel was not a party to FDP No. 16/2010 and were not served in FDP No. 21 and 26/2010, he was a party in FDP No. 51/2003, but did not disclose about the sale made to the appellant. The order being a decree, the appellant should file a Miscellaneous Petition under Order IX Rule 13 of CPC or a suit and have it set aside, if he can make out a case. If respondent No. 5 has compromised in FDP No. 51/2003, it does not take away the right of the others who have been granted the share. The order being a decree, the appellant should file a Miscellaneous Petition under Order IX Rule 13 of CPC or a suit and have it set aside, if he can make out a case. If respondent No. 5 has compromised in FDP No. 51/2003, it does not take away the right of the others who have been granted the share. There is absolutely no fraud played by them. At best the appellant can only assail the proceedings relating to the sale is the contention. 7. On the other hand, the learned counsel for the appellant sought to contend that the initiation of the FDP No. 16/2010 by respondent No. 1 is itself a fraud committed and the entire proceedings should be set aside. They were all parties in the earlier FDP No. 51/2003 which was settled with respondent No. 5 and the matter was closed since the respondents had settled in the suit itself. But, at this stage, once again they have filed separate proceedings without impleading the vendor of the appellant though they were aware that he had earlier filed the appeal and also settled with respondent No. 5. The present petitioners in the FDP had already been settled during the pendency of the suit which is recorded in the order sheet dated 05.06.1998 in O.S. No. 2155/1984. Thus when all the claimants seeking for the share had been settled, once again securing sale of the property to realise their shares does not arise. The learned counsel has also relied on the decision of the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 to point out that in similar circumstance, it was held that it would amount to fraud and vitiate the decree. 8. Having noticed the rival contentions, I am of the view that there is no elbow space left for this Court to delve much in detail at this juncture to arrive at a conclusion as to whether the respondents Nos. 1 to 5 should be held disentitled by allowing the appeal in its entirety. 8. Having noticed the rival contentions, I am of the view that there is no elbow space left for this Court to delve much in detail at this juncture to arrive at a conclusion as to whether the respondents Nos. 1 to 5 should be held disentitled by allowing the appeal in its entirety. I am of the said opinion due to the fact that major portion of such contentions, except the settlement made to respondent No. 5 had already arisen for consideration before this Court in the earlier appeal in RFA No. 1221/2002 when the vendor of the appellant herein was before this Court. In so far as respondents No. 1 to 4 herein being settled during the pendency of the suit, it was urged and this Court on taking note of the same had observed as hereunder; 17. Now adverting to the application filed by defendants 2 to 5 before trial court on 5.6.1988, I find from the records and order sheet maintained by trial court, the application was not pursued by parties and the learned trial Judge had neither accepted or rejected the application. If there was any arrangement between defendant No. 1 and defendants 2 to 5, the appellants who are purchasers of suit property from defendant No. 1 during pendency of suit are at liberty to pursue their remedy in final decree proceedings. However, the arrangement alleged to have been entered into by appellants and defendant No. 1 and defendants 2 to 5 does not bind the interest of plaintiff. If the appellants who are transferees from defendant No. 1 have any equities in their favour in the matter of allotment of shares by virtue of alleged arrangement which is said to have been entered into between deceased defendant No. 1 and defendants 2 to 5, the appellants are at liberty to pursue the same in final decree proceedings in accordance with law. 9. When such liberty had been reserved by this Court to the Vendors of the appellant, even at this juncture the appellant herein would have to be given such liberty to pursue his remedy in FDP No. 16/2010 as he has stepped into his Vendor's shoes. Further, on such liberty being reserved in the earlier appeal, it is the case of the appellant herein that his Vendors had settled respondent No. 5 by paying Rs.33,00,000/-. Further, on such liberty being reserved in the earlier appeal, it is the case of the appellant herein that his Vendors had settled respondent No. 5 by paying Rs.33,00,000/-. This also should be urged in the pending FDP proceedings. Hence, the contention of the learned counsel for the respondents that the appeal cannot be entertained at all cannot be accepted. At the same time, the contention of the learned counsel for the appellant that the FDP proceedings itself should be set aside cannot be adjudicated upon but it should be allowed to be urged before the FDP Court which will look into that aspect. This is moreso when such liberty had been given to the Vendor of the appellant and subsequently the FDP No. 16/2010 is filed without making the Vendors of the appellant as parties and in FDP No. 21 and 26/2010 which is merged in FDP No. 16/2010, they have not been served despite being impleaded. The appellant who has stepped into the shoes of his Vendors will have to be permitted to be impleaded and put forth his contentions therein. Hence point No. (i) is held in the negative and in favour of the appellant. 10. While assailing the order dated 06.07.2010 passed in FDP No. 16/2010 and the consequential orders relating to the auction sale, the learned counsel for the appellant on referring to the provision of the partition Act has thereafter referred to Order XXI Rule 66 and order XXI rule 69(2) CPC, relating to the requirement of proclamation of sale by public auction and the requirement of fresh proclamation when it is postponed beyond thirty days. It is contended that such proclamation was not made. Further reference is made to Order XXI Rule 84 and 85 CPC providing for immediate deposit of 25% of the purchase money after such declaration and the full payment into the Court by the auction purchaser before the end of the fifteenth day thereof. It is contended that such payment has not been made at the spot or before the Court within the stipulated time. The learned counsel for the appellant has relied on the decisions of the Hon'ble Supreme Court in the case of Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, AIR 1954 SC 349 ; in the case of Rao Mahmood Ahmed Khan Vs. Sh. The learned counsel for the appellant has relied on the decisions of the Hon'ble Supreme Court in the case of Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, AIR 1954 SC 349 ; in the case of Rao Mahmood Ahmed Khan Vs. Sh. Ranbir Singh and others, AIR 1995 SC 2195 and in the case of Gangabai Gopaldas Mohata Vs. Fulchand and others, AIR 1997 SC 1812 wherein it is held that the stipulation for deposit under Order XXI Rule 84 and 85 CPC is mandatory and non compliance is not just irregular but will render the auction sale as nullity. The decision of this Court in the case of Smt. Rosali V -vs- M/s. Nellai Small Match Producers Service Industrial Co-operative Society Ltd., and Others ( AIR 1999 Karn 167) wherein it is held that the deposit of the remaining amount even on the 16th day and acceptance of the bid is void. In such case the confirmation even if made after the period stipulated for confirmation, it would have no validity. 11. The learned counsel for the respondents No. 6 to 8 i.e., auction purchasers would point out that the sum of Rs.20,00,000/- was deposited on 25.05.2011 as per direction of Court below. The balance of Rs.1,43,80,000/- was deposited on 21.07.2011 and the sale certificate is issued on 05.09.2011. It was registered on 24.10.2011, pursuant to which delivery warrant was issued but the appellant has prevented execution of the same. Hence it is contended that the appeal be dismissed so as to enable the auction purchasers who has invested the money to take possession of the property and enjoy the same. 12. In that regard, a perusal of the order sheet maintained in FDP No. 16/2010 which I have been taken through will show that by the order dated 06.07.2011 the property in question is ordered to be sold on 26.08.2010. On the next date i.e., 27.08.2010 the commissioner has submitted his report. It is recorded in the order sheet that the participants have not turned up. The Court shows concession in the manner of deposit that could be made due to the high value which in itself is contrary to the mandatory provision. Further, there is no fresh proclamation as required., but on 07.04.2011 it is ordered that the same Commissioner shall hold the auction on 24.05.2011. The Court shows concession in the manner of deposit that could be made due to the high value which in itself is contrary to the mandatory provision. Further, there is no fresh proclamation as required., but on 07.04.2011 it is ordered that the same Commissioner shall hold the auction on 24.05.2011. The deposit of 25% is not made on the same day but on 25.05.2011 when a sum of Rs.20,00,000/- is deposited, which amount certainly does not constitute 25% of the value. The Court permitting to deposit lesser amount is no justification when it is mandatory and 25% of the sale price stated above would be a sum of Rs.40,95,000/-. Hence such leave granted itself would not be sustainable. Be that as it may, the balance was required to be mandatorily deposited before 08.06.2011, if the 15 days as provided is computed. However, when the matter was listed on 04.06.2011, the time to deposit is granted upto 04.07.2011 which is clearly beyond the mandatory period of 15 days permitted for depositing the balance amount. Again on 04.07.2011 the auction purchaser filed an application for extension of time and the Court has granted time till 01.08.2011. However, the balance amount was deposited on 21.07.2011 and as such further proceedings was ordered on 01.08.2011. The bid is thereafter accepted on 05.09.2011. Consequently the order for issue of sale certificate and delivery of possession is also passed. But, before possession is handed over, the appellant filed his impleading application and the further process has been put on hold by the Court below and this appeal is filed by the appellant in the meanwhile. 13. The manner in which auction has been conducted and the deposit of the amount being clearly contrary to the provision contained in Order XXI Rule 84 and 85 CPC and also keeping in view the decisions of the Hon'ble Supreme Court and this Court, the procedure followed is contrary to the mandatory requirement and as held therein, not only the sale and acceptance of the bid, but the confirmation is a nullity and would not have any validity and the same is to be set aside. 14. 14. That apart, when this Court in the earlier appeal had permitted the vendors of the appellant herein to take part in the FDP and put forth their contentions and seek equities, it was incumbent on the petitioner in FDP No. 16/2010 to implead them and the petitioners in FDP No. 21 and 26/2010 should also have ensured service on them. Even for the said default, the proceedings held in FDP thus far is not sustainable. At this juncture, since the vendors of the appellant have lost interest in the property, the appellant should be permitted come on record and take up all contentions therein by directing the Court below to allow the impleading application. Only after considering the case of the appellant and the same attaining finality, if the need arises to once again sell the property, the same shall be done by the Court below in accordance with law after complying due procedure. In the result the following; ORDER (i) The appeal in RFA No. 351/2012 is allowed in part. (ii) The order dated 06.07.2011 and the consequential orders for acceptance of bid and the order for delivery of possession passed in FDP No. 16/2010 are set aside. (iii) The Court below is directed to permit impleadment of the appellant herein as respondent in FDP No. 16/2010 and consider his case in similar terms as permitted in RFA No. 1221/2002 and proceed further in accordance with law. (iv) The respondents No. 6 to 8 herein i.e., the auction purchasers are granted liberty to seek for refund of the deposited amount which shall be considered by the Court below. (v) The parties to bear their own costs in the peculiar facts and circumstances.