The court upheld the auction of inherited property despite claims of procedural violations, emphasizing the discretion exercised in partition sales confirmed by prior decrees.

JUDGMENT :

Dr. ANITA SUMANTH, J.

1. This OSA has been filed challenging an order passed on 25.04.2025 in A.No.5572 of 2024 in C.S.No.76 of 2009 filed by R1. The Suit has been filed seeking a judgment and decree against the respondents as follows:

(a) that the properties comprised in the estate of late K.Subbiah, morefully described in the schedules hereunder be divided by metes and bounds and 1/4^th (one fourth) share be allotted to the Plaintiff;

(b) consequently, that the Defendants be directed to render true and proper accounts of the income earned through the properties, running businesses and properties purchased thereof from and out of the assets and businesses of late K.Subbiah and give 1/4^th share thereof to the Plaintiff

(c) Permanent injunction restraining the 2^nd Defendant, her agents and servants, any person and every person claiming though or under her in any manner disturbing the plaintiff's use, occupation and enjoyment of the property morefully described as item No.2 in the schedule hereunder.

(d) that an Advocate Commissioner be appointed to divide the immovable properties comprised in the estate of late K.Subbiah morefully described in the schedules hereunder, by metes and bounds and deliver separate possession of the 1/4^th share to the Plaintiff

(e) that the costs of the suit be deducted and borne out of the estate of late K.Subbiah.

2.The relationship inter se the parties is that the appellant, R1 and R2 are siblings and R3 and R4 are their niece and nephew, the children of their deceased brother. The learned Judge has, under the impugned order issued directions pursuant to the sale of property at 195, St.Mary’s Road, Alwarpet, Chennai – 600 018. (Property/property in question).

3.The order directing sale of that property and subsequent orders have not been challenged, and instead, what has been challenged, is only order dated 25.04.2025, where, post-sale certain directions had been issued to the Advocate Commissioner, inter alia, for receipt of consideration and deposit thereof, and execution of sale deed in favour of the successful auction purchaser.

4.The detailed submissions of the Mr.M.S.Krishnan, learned Senior Counsel for Mr.Pavan Kumar Gandhi, learned counsel on record for the appellant are as follows. The parties, barring R5, R6 & R7, are related. A preliminary decree had been passed in the suit on 23.12.2016, the suit for partition had been allowed and an Advocate Commissioner had been appointed.

5. The learned Judge, noticing that the relationship between the parties was admitted, had confirmed the entitlement of the appellant/D2 in suit, to her share of the suit properties. That was as early as on 23.12.2016. Thereafter, an application had been taken by R1 in A.No.5572 of 2024 for sale of the subject property, that came to be ordered directing sale by auction.

6.The learned Judge had directed auction notice to be published and had appointed an Advocate Commissioner to conduct the sale of the property. The sale had been concluded and according to the learned Senior Counsel, proper procedure was not followed in the finalisation of the sale. He would take us in detail to the provisions of the Partition Act , 1893 (in short ' ') as well as the Civil Procedure Code , 1908 (in short 'CPC') and the following judgments to illustrate that the timelines prescribed under Order 21 Rules 84 and 85 of CPC are mandatory, and non-compliance therewith would render the sale a nullity.

7. The judgments are:

1. Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and another, (1954) 1 SCC 724

2. Balram Son of Bhasa Ram v. Ilam Singh and others , (1996) 5 SCC 705

3. Gas Point Petroleum India Limited v. Rajendra Marothi and others , (2023) 6 SCC 391

4. R.Ramamurthi Iyer v. Raja V.Rajeswara Rao , (1972) 2 SCC 721

5. Central Mine Planning and Design Institute Ltd. v. Union of India and Another , (2001) 2 SCC 588

8.Per contra, Mr.P.L.Narayanan, Senior Counsel for Mr.E.Hariharan learned counsel for the first responden