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2012 Supreme(Kar) 1099
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
A.S. Bopanna, J.
Sri Mushtaq Ahmed S/o late Mohammed Haneef Aged about 60 years R/at No. 12, Benson Road, Benson Town Bangalore —Appellant
Vs.
Sowbhagya W/o Sri Muniraju Major, Residing at Yellachenhalli, Uttarahalli Hobli Sarakki Post, Bangalore-04 and others —Respondent
Regular First Appeal No. 351 of 2012
Decided on : 20-09-2012
Advocate Appeared:
Mr. P.D. Surana, Sri L.M. Chidanandayya, for the Appellant
Mr. S. Nagabhushana, Sri S.K. Venkatareddy, Sri Ramachandra, Sri N.R. Naik, Sri D.H. Mokashi, Sri S.G. Bhagwan, for the Respondent
Non-compliance with mandatory provisions of the CPC can render auction sale proceedings null and void.
Headnote:
auction sale - Property Dispute - Partition Act, Order XXI Rule 66, Order XXI Rule 69(2) CPC, Order XXI Rule 84, Order XXI Rule 85 CPC - The court allowed the appeal in part, set aside the order for acceptance of bid and the order for delivery of possession, directed impleadment of the appellant as respondent in FDP No. 16/2010, and granted liberty to the auction purchasers to seek refund of the deposited amount.
Fact of the Case:
The appellant contested the auction sale of a property in a partition suit, claiming that the proceedings were fraudulent and the auction sale should be set aside. The respondents justified their actions, stating their entitlement to the property as per the Partition Act.
Finding of the Court:
The court found that the auction sale proceedings did not comply with the mandatory provisions of Order XXI Rule 84 and 85 CPC, rendering the sale null and void. The court also directed impleadment of the appellant in the partition suit and granted liberty to the auction purchasers to seek refund of the deposited amount.
Issues: The issues involved whether the appellant had the right to contest the auction sale and whether the auction sale proceedings were conducted in compliance with the relevant provisions of the CPC.
Ratio Decidendi: The court held that the auction sale proceedings did not comply with the mandatory provisions of Order XXI Rule 84 and 85 CPC, rendering the sale null and void. The court also emphasized the need for impleadment of the appellant in the partition suit and granted liberty to the auction purchasers to seek refund of the deposited amount.
Final Decision: The court allowed the appeal in part, set aside the order for acceptance of bid and the order for delivery of possession, directed impleadment of the appellant as respondent in FDP No. 16/2010, and granted liberty to the auction purchasers to seek refund of the deposited amount.
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. 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.
