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2024 DIGILAW 406 (KER)

Janaki v. V. R. S. Krishnan

2024-03-27

A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN

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JUDGMENT : A. Muhamed Mustaque, J. These matters of different nature of litigation revolve around a challenge made to the sale in O.S.No.1/1964 on the file of the District Court, Palakkad. The lead case in this batch, O.P.No.33731/2002 is filed invoking Article 227 of the Constitution. 2. Late V. Madhava Raja owned several parcels of land and properties. He had income tax, wealth tax and agricultural income tax dues. On his demise, a suit for partition was initiated. A preliminary decree was passed. Based on the report of the Commissioner, all parties have agreed for the sale of Devi Vilasam Palace, Item No.9 of ‘C’ scheduled property in the preliminary decree; this was to clear income tax arrears. The property was sold in auction based on the orders of the Court on 08.04.1992 for Rs.31,15,000/-. Bidders were Dr. V.R.S. Krishnan, K. Radhakrishnan and T.R.K. Das. This was not a sale in execution. It can be treated as a sale invoking Rule 234 of Civil Rules of Practice. The sale was also confirmed. There were several intervening litigations. We are not referring to the entire litigation as the scope of present litigation is centered around the power of this Court invoking Article 227 of the Constitution to knock down a sale conducted pursuant to the agreement between the parties. However, we want to refer to the litigation challenging the sale invoking Order 21 Rule 90 Civil Procedure Code. This challenge went upto the Hon’ble Supreme Court and the Supreme Court put an end to the litigation finally negating the challenge. 3. The challenge was made under Order 21 Rule 90 CPC as though the sale took place pursuant to execution proceedings. The above challenge was made by legal heirs of co-shares, mainly Janaki S. Menon and others. The property was originally sold among sharers; however they could not pay the amount within time. Thereafter, the District Court sold the property in a public auction. Janaki and others filed an application to set aside the same on the ground that the auction purchaser did not deposit the entire amount within time. The District Court also extended the time for the auction purchaser to deposit the sale consideration. Revisions were filed before this Court; this Court dismissed the revision. Thereupon, the matter was carried to the Apex Court. The District Court also extended the time for the auction purchaser to deposit the sale consideration. Revisions were filed before this Court; this Court dismissed the revision. Thereupon, the matter was carried to the Apex Court. It was specially urged before the Apex Court that the property was sold in auction on a factum which everyone believed true that there were arrears of tax. Since it came out that no amount was due, the sale has to be set aside. The Apex Court after referring to the documents produced, opined that these two documents do not indicate there was no amount due from the assessee and noting that certificate issued by the Income Tax Officer indicating dues, dismissed the challenge. I. O.P. No.33731/2002 : 4. This original petition was filed on the ground that the Court below committed mistake in ordering sale. According to the petitioner, the Court acted on the proposal put forth by Adv. P.B. Menon, suggesting that rather than the tax department attaching the property, the Court could sell the property to liquidate the liability that is due to the tax department. This suggestion was accepted by all counsels. The court below passed an order on 28.01.1983 ordering the sale of the above property (Item No.9 - Devi Vilasam palace). After the challenge made under Order 21 Rule 90 CPC, it has come out that actually there were no dues to the tax department. Therefore, the challenge has been now raised to set aside the sale on the ground that consent was obtained under mistake of fact and court assumed the jurisdiction to sell the property on the wrong foundational facts. And therefore, sale conducted by the court is liable to be declared as illegal and void. According to them no parties should suffer by act of Court, and it is the Court that committed wrong by ordering sale of the property. 5. In the course of the hearing we obtained a report from the District Judge Palakkad that the amount deposited by the bidders remained intact and it was not utilised for the purpose of discharging tax liability. It appears that based on subsequent litigation the tax liability has been reversed. 5. In the course of the hearing we obtained a report from the District Judge Palakkad that the amount deposited by the bidders remained intact and it was not utilised for the purpose of discharging tax liability. It appears that based on subsequent litigation the tax liability has been reversed. The tax liability appears to have been fixed treating assessee as Hindu Undivided Family, and based on the litigation before this Court it was reversed noting that no such tax recoverable consequent upon disruption of the joint family. The question is whether this court should exercise its power under Article 227 of the Constitution of India. 6. The sale based on an agreement in a suit for partition is nothing but a sale acting upon the compromise of the parties. In a suit for partition, it is possible for the parties to enter into a compromise to sell the property. That means, insofar as that agreement and order thereon, it attained the status of a compromise decree. A decree is defined under Section 2(2) of the Civil Procedure Code as a “formal expression of adjudication”, where the Court conclusively determines the right of parties with regard to all or any controversies in this matter. The following are essential characters of decree : i. A conclusive decision is taken in a suit. ii. The decision must have been on the right of the parties with regard to any matter in controversy in the suit. iii. If finally determined the rights of the parties. iv. the decision of the Court formally expressed on such controversy in the suit. v. On determination, nothing left for the parties for future except by recourse to challenge by way of appeal or otherwise. 7. The Hon’ble Supreme Court in Bimal Kumar and another v. Shakunata Debi and other [ 2012 (3) SCC 548 ] was of the view that when a decree is passed on the bedrock of a compromise, covering all aspects, leaving nothing to be done in future, and when the court definitively concludes the matter by giving its stamp of approval, it becomes a final decree. 8. In this case (O.P. No.33731/2002), the parties unanimously agreed to sell item No.9. That means, the issue is finally determined by the order of the Court which accepted the agreement of the parties. 8. In this case (O.P. No.33731/2002), the parties unanimously agreed to sell item No.9. That means, the issue is finally determined by the order of the Court which accepted the agreement of the parties. The decision of the parties was given a seal of approval by the Court by ordering sale. That order is a decree for all practical purposes. This sale cannot be considered as a sale by exercising power under Section 2 of the Partition Act, 1893. The above provision relates to the power of the Court. This sale is purely based on the agreement between the parties. Therefore, the sale cannot be seen in isolation of the compromise entered between the parties in regard to the item no 9. This order passed by the court, based on the agreement is nothing but a decree so far as it is related to item No 9. 10. In a matter like this, when the Court orders a sale acting upon the agreement of the parties, the court is only following the procedure under Rule 234 of Civil Rules of Practice based on compromise decree. If the foundation for the agreement is lost, it cannot be cured after the sale is completed. The sale cannot be said invalid or illegal at the time it took place. The property was sold on 15.06.1992. The reassessment of the wealth tax was made only on 17/10/2002. The prayers in this case are challenging the orders of sale. The sale cannot be challenged without reopening the decision to sell the property. As we already noted, the sale was pursuant to compromise. If the compromise is not questioned in any form before any competent court or before the court which passed the decree, the sale cannot be questioned invoking Article 227 of the Constitution of India. In view of the above, the challenge in O.P.No.33731 of 2002 must fail. Accordingly, the original petition is dismissed. II. C.R.P. No. 2819/2002: 11. This civil revision petition was filed challenging an order of the District Court, Palakkad, allowing an application filed by the bidders seeking vacant possession of the Devi Vilasam Palace and compound. In the light of the fact that there is no scope for interference in this matter, the civil revision petition is dismissed. III. O.P.(C)No.3827/2012: 12. C.R.P. No. 2819/2002: 11. This civil revision petition was filed challenging an order of the District Court, Palakkad, allowing an application filed by the bidders seeking vacant possession of the Devi Vilasam Palace and compound. In the light of the fact that there is no scope for interference in this matter, the civil revision petition is dismissed. III. O.P.(C)No.3827/2012: 12. This original petition was also filed for a declaration that the sale of Item No.9 Devi Vilasam Palace is null and void. In the light of the discussion regarding the challenge in the lead case, this original petition is also dismissed. IV. W.A. No.1346 of 2022: 13. This writ appeal was filed by One Parthasarathy. He is one of the legal heirs of the auction purchaser. He approached this Court as some of the heirs executed the sale deed ignoring the sale effected in favour of his predecessor-in-interest. The learned Single Judge dismissed the challenge with liberty to the writ petitioner to move the appropriate Court. We note that any act defeating the order of the Court and sale taken place will have to be noted by the registering authority concerned. We, therefore, direct the District Court, Palakkad, to act upon any request made by the appellant in appropriate form, seeking any relief in regard to the property covered by the sale. We relegate the appellant to move the District Court for appropriate relief for intimating the registering authority concerned to record the sale in accordance with law. The writ appeal is disposed of as above. V. W.P.(C).No. 32871/2022: 14. This writ petition is filed by one Bhageerathan M.K. who challenges an order of the Revenue Divisional Officer, Palakkad, cancelling thandaper till a final decision is taken in regard to the sale in O.S. No.1/1964. It appears that the petitioner purchased the property from one of co-shares ignoring the sale. In the light of the fact that we have not interfered with the sale, the writ petition is only to be dismissed. The writ petition is, accordingly, dismissed.