Court affirmed that a party actively participating in auction cannot contest its validity on procedural grounds absent clear evidence of fault.

ORAL ORDER

This petition by respondent No.1 in FDP.No.28/2013 on the file of XV Additional City Civil and Sessions Judge, Bengaluru (CCH-3) is directed against the impugned order passed on IA.No.X, whereby the said application filed by the petitioner/respondent No.1 under Order XXI Rule 90 r/w Section 151 of CPC to set aside the auction of the suit property conducted by the Court Commissioner on 14.11.2024 was dismissed by the trial Court.

2. A perusal of the material on record will indicate that the petitioner and respondents were parties to a suit in OS.No.4212/1992 for partition and separate possession and other reliefs in relation to the suit schedule immovable property. The said suit was decreed by the trial Court vide its judgment and decree dated 23.02.2012, which was challenged before this Court in RFA.Nos.590/2012 and 591/2012. The said appeals were filed by the petitioner herein and culminated in a judgment and decree dated 13.01.2021, whereby this Court dismissed both the appeals filed by the petitioner. The petitioner/appellant in RFA.No.590/2012 and 591/2012 did not challenge the judgment and decree passed by this Court and the same attained finality and became conclusive and binding upon the appellant.

3. In the meanwhile, the final decree proceedings had been instituted in FDP.No.28/2013 and the same were taken up by the trial Court, which directed conducting of a public auction and the same was conducted on 14.11.2024 by the Court Commissioner. In the said public auction, the auction purchasers K.P.Santhosh and Maravekare Narayana Shivakumar had purchased the suit schedule property. Subsequently, the petitioner filed the instant application i.e., IA.No.X seeking setting aside of the sale inter alia contending that the procedure contemplated under Order XXI Rule 66 of CPC had not been followed by the trial Court in as much as there was no paper publication and no tom-tom conducted by the trial Court and also on the ground that there was no sale proclamation issued by the trial Court, which would vitiate the sale. It deserves to be set aside.

4. The said application having been opposed by the respondents, the trial Court proceeded to pass the impugned order rejecting the application, aggrieved by which, the petitioner is before this Court by way of the present petition.

5. Learned counsel for the petitioner would reiterate the various contentions urged in the petition and invite my attention to the provisions contained in Order XXI Rule 66 of CPC in order to contend that in the absence of the trial Court following the prescribed procedure, in particular Order XXI Rule 66 of CPC and without issuing a sale proclamation, the impugned sale was vitiated and the same deserves to be set aside. In support of his submissions, he placed reliance on the judgment of the Hon’ble Apex Court in the case ofDesh Bandhu Gupta Vs. N.L. Anand & Rajinder Singh, (1994) 1 SCC 131 and judgment of the Co-ordinate Bench of this Court in the case ofL.Nanjunda Murthy and Others Vs., S.Suresh Reddy and Others AIR 2017 KANT 50

6. Per contra, learned counsel for the respondents would support the impugned order and submit that there is no merit in the petition and the same is liable to be dismissed.

7. I have given my anxious consideration to the rival submissions and perused the material on record.

8. A perusal of the material on record including the impugned order will indicate that the trial Court has taken into account the undisputed facts and circumstances obtained in the instant case including the order sheet maintained by the trial Court, which clearly establish that the prescribed procedure had been followed by the trial Court. The trial Court also took into account the conduct of the petitioner in participating in the proceedings a