A.V.CHANDRASHEKARA

1. Both these petitions filed under Article 227 of the Constitution of India are directed against the order dated 8.12.2014 and 21.2.2015 passed on I.A.4 in FDP.131/12 and pending on the file of the XXXVIII Additional City Civil Judge, Bengaluru City. The petitioner herein is the 1st respondent in FDP.131/12 arising out of the judgment and preliminary decree in an original suit in O.S.6933/08. Respondents 1 to 4 herein are petitioners 1 to 4 in the said proceedings and respondents 5 and 6 herein are respondents 4 and 3 respectively in FDP.131/12. Parties will be referred to as petitioners and respondents as per their ranking in the final decree proceedings.

2. The facts leading to the filing of these petitions are as follows:

a) G.Pramila, G.Prabhakar, G.Pughalvani and G.Vinodini were the plaintiffs in O.S.6933/08. They chose to file the suit for the relief of partition and separate possession against this petitionerG.Sathyavelu and 6 others in respect of a house measuring 25’ x 40’ situated in Bengaluru city. The said suit came to be decreed on 24.3.2012 granting 1/8th share to each of the plaintiffs. After obtaining preliminary decree, the plaintiffs therein chose to file final decree proceedings in terms of Order XX Rule 18, C.P.C. for demarcation of their share by metes and bounds.

b) During the pendency of the suit, a commissioner was appointed to ascertain the feasibility of partition of the suit property in terms of the decree passed in O.S.6933/08. Mr.Dyappa, an architect, was appointed as commissioner by the court. He has submitted a report stating that it is not feasible to divide the property into 8 parts and that putting the property to sale in open market is the only avenue. As per the report dated 21.4.2014 submitted to the court, the guidance value of the property was Rs.5,500/per sq.ft. as per the notification issued by the Department of Stamps and Registration.

c) During the pendency of the petition, one of the parties died and therefore, 1/8th share is modified as 1/7th share. An application came to be filed vide I.A.3 by the petitioners therein requesting the court to order for sale of the schedule property through public auction and to distribute the sale proceeds as per their entitlement. The said application was filed in terms of Section 2 of the Partition Act, 1893, read with Section 151, C.P.C. After hearing the learned advocates for the parties, the following order came to be passed by the learned judge, appointing Mr.Dyappa, civil architect as the court commissioner to execute the sale warrant:

I.A.no.3 filed under Section 2 of the Partition Act r/w Sec.151 of C.P.C.is allowed. No cost.

Advocate for petitioner prays to appoint earlier court commissioner to execute the warrant and to sell the schedule property in public auction.

Hence Sri Dyavappa, Civil Architect is appointed as court commissioner. Commissioner Fee is tentatively fixed as Rs.10,000/. To deposit Commissioner’s fee and to pay by 23.8.2014. d) Later on an application was filed by this petitioner (1st respondent in FDP proceedings) in terms of Section 3 of the Partition Act read with Section 151, C.P.C. to permit him to purchase the shares of other coowners in respect of the schedule property and to ascertain the value of each share and offer to sell the same to him, in the interest of justice. The said application was objected to by the petitioners therein by filing detailed written statement. Ultimately the learned judge allowed the said application filed vide I.A.4 under Section 3 of the Partition Act in part, permitting this petitioner and the petitioners in FDP proceedings to participate in the public auction for sale of the property.

e) After this order was passed on 8.12.2014, an application was filed by this petitioner requesting the court to review the order passed on I.A.4 dated 8.12.2014. The said application is supported by the affidavit sworn to by the petitioner. According to him, there cannot be any p