IMPORTANT POINT
The main legal principle established is that a sale based on a compromise decree in a suit for partition cannot be challenged without questioning the compromise itself.

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. 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 amou