The court established that in family auctions conducted under the Partition Act, the strict procedural requirements of the CPC do not apply, allowing for a more flexible approach to protect the rights of co-sharers.

JUDGMENT

Sachin Shankar Magadum, J.

The captioned second appeal is filed by respondents 5 to 12 in the final decree proceedings, who are assailing the decree passed by the FDP Court in confirming the sale of suit schedule property in favour of respondent No.14 and consequently, issuing a sale certificate by collecting a proper stamp and thereby granting Rs.1,17,083/- to the plaintiff out of the sale consideration, in satisfaction of the preliminary decree drawn in O.S.No.353/1992.

2. The facts leading to the case are as under:

Respondent No.1 namely B.S. Jaivandas filed a suit for partition and separate possession in O.S.No.353/1992. The said suit was decreed by the Court granting 1/12th share to the plaintiff/first respondent by judgment and decree dated 27.1.1996. First respondent before this Court, who is no more, initiated final decree proceedings in FDP.No.16/2008. A Commissioner was appointed to report feasibility of partition in terms of the preliminary decree drawn by the Court. The Court commissioner on spot inspection submitted a report indicating that partition is not feasible. It is in this context, respondent No.14 filed an application and an auction was held within the family members and respondent No.14 alone participated in the family auction and the upset price was fixed at Rs.14,00,000/-. Respondent No.14 bid the suit schedule property for a sum of Rs.14,05,000/- and none of the other family members participated in the auction. Therefore, respondent No.14 deposited 25% of the accepted bid amount before the Commissioner and the remaining amount was deposited before the Court.

3. The present appellants, who are respondents in the final decree proceedings, filed writ petition in W.P.No.51104/2014 questioning the auction sale. This Court on examining the rival contentions canvassed by both the parties was not inclined to interfere with the order passed by the Court below wherein auction sale was upheld by the FDP Court. This Court dismissed the writ petition. Paragraphs 7 to 10 of the said order would be relevant, therefore, the same is culled out as under:

"7 . A reading of order XXI Rule 90 Code of Civil Procedure would go to show that for seeking setting aside of the auction sale, the applicants, or purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale show that there is some material irregularity or fraud in conducting auction. Further sub-rule (2) of Rule 90 clearly mentions no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

8. In the circumstances of the case, the applicants who filed I.A.Nos.8, 10 and 11 though have sought for setting aside of the auction sale have not been able to show what was the irregularity said to have been committed by the said commissioner in putting decreetal property for sale in an auction. As the commissioner report which is produced with the writ petition as Annexure-E clearly go show that attempts were made by the court as well as auctioneer and opportunities were given and also a perusal of the material placed before this court would go to show that auction was taken place in a procedure known to law and with due intimation to parties in accordance with law.

9. As already observed above sufficient opportunities were given and petitioners along with their counsels were present at the time of auction. Therefore, when there is no alleged fraud or irregularity shown by the applicants in the applications in I.A. Nos.8, 10 and 11, the trial court has rightly rejected those applications. Subsequently, since trial court had no power to review the order passed on I.A.Nos.8, 10 and 11 filed by the applicants, it also rejected I.A. Nos. 13 and 15 filed by the applicants therein under Section 151 Code of Civil Procedure, by its or