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ISM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION NO. 5163 OF 2022

PURUSHOTTAM BADRINATH CHANDAK

….PETITIONER

V/s.

SAVITRABAI BADRINARAYAN CHANDAK

…..RESPONDENTS

SINCE DEC THR LRS AND ORS

Dr. Uday P. Warunjikar Advocate for the Petitioner

Mr. Girish R. Agrawal Advocate for Respondent no.2

Mr. Ajay A. Joshi Advocate for Respondent no. 3

CORAM :

NITIN W. SAMBRE, J.

DATE:

APRIL 26, 2022.

P.C.:

1)

Respondent no. 3 Plaintiff filed a Suit for partition in which the

Petitioner is shown to be Defendant no. 3. After the Suit was decreed

on 11/07/1997, execution proceedings were initiated.

2)

Based on the Report of Court Commissioner it was ordered that

Partition cannot be effected. Pursuant to provisions of Order XXI

Rule 66 of the Code of Civil Procedure, 1908 (Hereinafter referred to

as ‘CPC’ for the sake of brevity) order came to be passed thereby

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IRESH SIDDHARAM

MASHAL

Digitally signed by IRESH

SIDDHARAM MASHAL

Date: 2022.04.27 09:42:08 +0530

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directing auction of the Suit property.

3)

It appears that Petitioner who claimed to be Judgment-Debtor

no. 2 moved an Application Exh. 92 offering Rs. 1 Crore towards

consideration in the said execution.

4)

As a consequence, vide order below Exh. 77, Petitioner was

permitted to deposit sale consideration of Rs. 75,00,000/- excluding

his 1/4th share with directions to permission to parties to the Decree

to execute the sale deed failing which Court Officer was directed to

execute the sale deed.

5)

Plaintiff-Decree holder and present Petitioner preferred Writ

Petition No. 8669/2021 and 7390/2021 which was allowed by

consent with directions to carry out valuation of the Suit property.

6)

In the said order at the request of parties, this Court directed

Executing Court to complete entire process of action within 10 weeks.

7)

Vide impugned order passed on 30/03/2022 below Exh. 1, bid

of Judgment-Debtor no. 2 for Rs. 1,38,00,000/- was accepted. Since

the amount of Rs. 75,00,000/- was already deposited as observed

herein above, he was directed to deposit remaining amount.

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8)

Said order is under challenge on the ground that Court below

committed an error in valuing the property at much below market

value as has been mentioned in the valuer’s report.

9)

Dr. Warunjikar would invite attention of this Court to valuation

given by Government approved Valuer appointed by the Court which

is around Rs 50 lakh so also report of the Valuer produced by the

Petitioner wherein valuation of the Suit property is mentioned as Rs.

1,81,79,000/-.

10)

As such, according to him, Court should re-auction the

property.

11)

I have appreciated said submissions.

12)

Fact remains that even if the Petitioner has come out with a

case that Suit property is valued at Rs. 1,81,79,000/-, Petitioner is

neither willing to buy the said property at that cost nor offer was

received over and above amount of Rs 1.38 crore. Executing Court

has considered highest offer received pursuant to the provisions of

Order XXI Rule 66 of the CPC and proceeded to accept the offer of Rs.

1,38,00,000/- given by Judgment-Debtor no. 2. Court as such

directed issuance of sale certificate.

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13)

As neither Petitioner nor Respondent No.3 has brought any

purchaser over and above the offer made by the judgment-debtor

No.2 of Rs 1.38 crores, the claim that property should be put to

public auction based on valuation report of the Petitioner does not

warrant any consideration, as the same is without any legal basis.

14)

In that view, in my opinion, no interference is called for in the

impugned order. Petition as such stands rejected.

15)

At this stage, prayer is made by Petitioner and Respondent no.

3 that order of saddling the cost be recalled.

16)

Parties are at liberty to move before the Executing Court with

such prayer. Executing Court shall deal with the same in accordance