IMPORTANT POINT
The court upheld the trial Court's decision to auction property instead of partitioning, citing impracticality based on the Advocate Commissioner's report.

ORDER :

This Civil Revision Petition is filed against the order dated 10.11.2022, passed by the Court of XVII Additional Senior Civil Judge, City Civil Court, Hyderabad in I.A.No.174 of 2019 in O.S.No.221 of 2014.

2. The petitioners are the defendants and the respondents are the plaintiffs in the suit. For convenience, the parties are referred to as they are arrayed before the trial Court.

3. Succinctly stated, the facts of the case are that the plaintiffs filed suit for partition and separate possession of the suit schedule property. The trial Court after full-fledged trial, and on appreciating the evidence on record, passed the preliminary decree. Subsequently, the plaintiffs filed the aforesaid I.A. praying the Court to pass final decree in pursuance of the preliminary decree by allotting 1/6th share to them in the suit schedule property as per the Advocate Commissioner’s report.

4. The trial Court on perusing the material available on record and on hearing the learned counsel for both the parties, passed the impugned order, dated 10.11.2022, adjourning the case to 05.12.2022 for taking steps under Sections 2 and 3 of the Partition Act and for filing the Market Value Certificate of the suit schedule property. Aggrieved by the same, the defendants approached this Court by way of filing this Civil Revision Petition.

5. Learned counsel for the petitioners/defendants contended that the trial Court erred in ordering sale of the suit schedule property in public auction, instead of partitioning the same into six equal shares and allotting one such share to the respondents/plaintiffs. He further contended that the trial Court ought not to have put the suit schedule property to public auction and on the other hand, the major share holders i.e., the petitioners ought to have been accorded opportunity to purchase the suit schedule property and hence, he seeks to set aside the impugned order of the trial Court.

6. Learned counsel for the petitioners relied upon the decision of the Hon’ble Supreme Court in Hasham Abbas Sayyad Vs. Usman Abbas Sayyad, 2006 CJ (SC) 353, and in the said case, the question which arose for consideration is as to whether the property in suit could be put on action sale without initiating a formal final decree proceeding and the Hon’ble Supreme Court on analyzing the entire case vis-a-vis the provisions of Civil Procedure Code and other judgments of the Hon’ble Supreme Court, at paras 23 and 24 observed as under:-

“23.This aspect of the matter has recently been considered by this Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. And another, 2005 7 SCC 791 in following terms:

We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity.

24. We may, however hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Sec. 21 of the Code of Civil Procedure; and a decree passed by a court having no jurisdiction in regard to the subject matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordin