Point of Law: Unlike a stranger purchaser in a public auction, a co-sharer himself has a pre-existing right in suit schedule property. parties are given an option to go for auction to see that intrinsic value of suit schedule property which is subject matter of partition suit does not get destroyed.

ORDER :

1. The captioned writ petition arises out of final decree proceedings pending in FDP No.2/2008 on I.A.Nos.15, 16 and 17. The present petitioners are arrayed as respondent Nos.1(f), 1(g) and 1(h) in the pending final decree proceedings.

2. The Coordinate Bench of this Court in Civil Revision Petition No.383/2015 directed the final decree Court to draw final decree by bringing in suit schedule property for sale as contemplated under law. The respondent Nos.9 to 11 before this Court who are arrayed as defendant Nos.4(a) to 4(c) filed application in I.A.No.12 under Section 2 read with Section 8 of the Partition Act, 1893 (for short 'the Act of 1893') requesting the Court to sell the suit schedule property by way of auction and distribute the proceeds. The said application was allowed by the final decree Court by order dated 23.11.2021 and the Court called upon the parties to submit their written willingness to bid the property under court auction in terms of Section 3 of the Act of 1893. The respondent No.1 who is the petitioner in FDP Court, respondent Nos.4 and 5 who are arrayed as respondent Nos.1(c) and 1(d) respectively, husband of respondent No.9 namely Dayanand who was arrayed as respondent No.4 and present respondent No.15 who is arrayed as defendant No.8 expressed their willingness to participate in the bid.

3. The matter was adjourned on three occasions to enable the present petitioners an opportunity to participate in the proceedings. The present petitioners did not submit their willingness to purchase the property under the bid. On 13.12.2021, court auction was conducted and bid was held in court premises between 4.00 p.m. to 5.00 p.m. In terms of court auction held on 14.12.2021, the above said respondents participated in the auction bid and the present respondent No.15 was declared to be the successful bidder. The FDP Court directed the respondent No.15 to deposit the bid amount by 17.01.2022. The respondent No.15 filed a memo along with Demand Drafts bearing Nos.172109 and 172110 dated 14.01.2022 and deposited Rs.1 Crore each. Thereafter respondent No.15 filed I.A.No.15 seeking extension of time to deposit remaining sale consideration. The respondent No.15 subsequently has deposited the entire amount.

4. The petitioners contended that respondent No.15 has not deposited the bid amount as per the provisions of Order 21 Rules 84 and 85 of CPC and therefore, sought for setting aside the bid and order for resale. The petitioners relied on judgment rendered by this Court in the case of Harnath Rao vs. Parvathamma and Others, ILR 1998 Kar 3974 and also judgment in Mudragada Suryanarayanamurthi vs. Southern Agencies, Rajahmundry, AIR 1962 AP 271. The said contention was countered by respondent No.15 by specifically contending that the auction is held in terms of Section 3 of the Act of 1893 and therefore, the provisions of Order 21 Rule 84 of CPC are not applicable. The respondent No.15 also placed reliance on the judgment rendered by the Andhra Pradesh High Court reported in AIR 1989 AP 320.

5. The learned Judge, however, declined to entertain the objections raised by the petitioners herein. The contention of the petitioners that they were not aware of auction sale till 14.12.2021 was not accepted by the FDP Court. The FDP Court was of the view that if petitioners had come to know about the auction sale on 14.12.2021, nothing prevented petitioners from seeking advancement of the matter. It is in this background, FDP Court declined to entertain the objections having regard to the fact that bid amount is huge and since respondent No.15 has deposited the entire bid amount in the Court, the FDP Court was of the view that the Partition Act does not prescribe any time limit for deposit of bid amount. The FDP Court was also of the view that the amount was deposited within reasonable time. Therefore, applying the principles laid down by the Andhra Pradesh High Court in the judgment cited supra, the learned Judge roceeded to