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Madhya Pradesh High Court · body

2015 DIGILAW 1210 (MP)

Prabhakar Vyas v. Vishwa Nath Vyas

2015-11-30

ALOK ARADHE

body2015
ORDER 1. In this writ petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 5.5.2014 by which the application preferred by the petitioner under section 47 read with Order 21 rule 84(2) of the Code of Civil Procedure, has been rejected. 2. Facts giving rise to filing of the writ petition briefly stated are that the original plaintiff Mr. Ramchand Vyas had instituted a suit for partition. The claim in the suit was based on succession. The suit was decreed in favour of the plaintiff and a preliminary decree was drawn to the effect that plaintiff and judgment debtors have one-third share each in the suit house. The aforesaid decree attained finality. Thereafter, in the final decree proceeding, a Commissioner was appointed by the executing Court. The Commissioner upon survey of the property in dispute, submitted a report that no effective partition can be carried out in pursuance of the preliminary decree. The trial Court accordingly by an order dated 5.1.2009 inter alia held that no partition can take place. The trial Court held that the property be put to public auction. Accordingly, the final decree was prepared on 5.1.2009. The aforesaid decree was affirmed by the first appellate Court as well as by this Court in second appeal. 3. After the determination of the rights of the parties, the petitioner/decree holder No.2 purchased the share of all the co-decree holders through registered sale deeds and in addition, the petitioner also purchased the share of the judgment debtor/ respondent No.2. Since an order for public auction was already passed by the trial Court, therefore, the petitioner prior to proceeding for auction, filed an application under section 47 as well as under Order 21 rule 84(2) read with section 151 of the Code of Civil Procedure seeking exemption from payment of the amount to the extent of two-third share. The executing Court vide order dated 5.5.2014 rejected the aforesaid application. In the aforesaid factual background, the petitioner has approached this Court. 4. Learned counsel for the petitioner submitted that under Order 41 rule 84(2) of the Code of Civil Procedure, the Court has the power to dispense with requirement contained in Order 21 rule 84(2) of the Code of Civil Procedure. However, the aforesaid aspect of the matter was not appreciated by the trial Court. 4. Learned counsel for the petitioner submitted that under Order 41 rule 84(2) of the Code of Civil Procedure, the Court has the power to dispense with requirement contained in Order 21 rule 84(2) of the Code of Civil Procedure. However, the aforesaid aspect of the matter was not appreciated by the trial Court. In support of the aforesaid submission, learned counsel for the petitioner has invited the attention of this Court to section 3 of the Partition Act. Learned counsel for respondents No.11 to 19 has supported the case of the petitioner. 5. Learned counsel for respondent No.1-A has submitted that since the petitioner has not challenged the order dated 9.10.2013, therefore, the same has attained finality and the petitioner is not entitled to any relief. 6. I have considered the submission made by learned counsel for the parties and have perused the record. From perusal of the record, it is evident that by order dated 9.10.2013, the trial Court has held that the auction of the suit house shall be held subject to sale of the property. From perusal of the impugned order dated 5.5.2014 it is evident that the trial Court has neither decided the application bearing in mind the mandate contained in Order 21 rule 84(2) of the Code of Civil Procedure as well as section 3 of the Partition Act. The impugned order therefore suffers from the error vice of non-application of mind. The impugned order therefore cannot be sustained in the eye of law. Accordingly, it is quashed. The executing Court is directed to decide the objection preferred by the petitioner in light of the provisions contained in Order 21 rule 84(2) of the Code of Civil Procedure as well as section 3 of the Partition Act, 1893. 7. Let a copy of this order be sent to the trial Court by Fax. 8. With the aforesaid directions, the writ petition stands disposed of.