Writ petition challenging Civil Judge's order allowing Court Commissioner appointment for auction of undividable house property. Court held no error as division into seven shares was impractical.
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NC: 2023:KHC:27426 WP No. 17777 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.17777 OF 2022 (GM-CPC)
BETWEEN:
SRI. MURTHY K. R. S/O LATE K.M. RAMASWAMY, AGED ABOUT 62 YEARS, R/AT RAJESHWARI NILAYA, N.T.B. ROAD, JANNAPURA, BHADRAVATI, SHIVAMOGGA-577 301.
…PETITIONER
(BY SRI. CHANDAN M., ADV. FOR
SRI SUNIL KUMAR B N., ADV.)
AND:
Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA
W/O T.V.SUBRAMANYAM AGED ABOUT 66 YEARS, R/AT .89, BALAJINAGAR, GOPICHETTIPALYAM TALUK, EROE DISTRICT,
TAMIL NADU STATE-638001.
NC: 2023:KHC:27426 WP No. 17777 of 2022
3D SRI M.NAGARAJ S/O MUTHUVELU AGED ABOUT 58 YEARS ALL ARE R/AT NO.3, 104, GANDHINAGAR, UTHUKULI ROAD, MALLAPALYAM, EROD, TAMILNADU.
TAMILNADU STATE-641 001.
NC: 2023:KHC:27426 WP No. 17777 of 2022
R./AT RAJESHWARI NILAYA, NTB ROAD, JANNAPURA BHADRAVTHI, SHIVAMOGGA-577 301.
…RESPONDENTS
(BY SRI.A.ABHISHEK, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS DATED 03.02.2021 AND 22.11.2021 PASSED BY THE COURT OF CIVIL JUDGE (SNR DVN) AND JMFC, BHADRAVATHI, IN FDP NO.16/2011, VIDE ANNX-A1 AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the petitioner under
Article 227 of the Constitution of India praying to set aside the orders dated 22.11.2021 and 03.02.2021 passed in FDP No.16/2011 by the Civil Judge and JMFC, Bhadravathi (for short, 'the trial Court'), whereby the application filed by respondent No.1 under Order XXVI Rule 1 of CPC for appointment of Court Commissioner to conduct public auction in respect of item Nos.1 and 2 of the proceedings was allowed.
2. Brief facts leading to filing of this petition are
that respondent No.1 has initiated final decree proceedings in FDP No.16/2011 seeking prayer to draw final decree in favour of respondent No.1, who is plaintiff No.2 in O.S.No.16/2006. During the pendency of the above said final decree proceedings, respondent No.1 has filed an application seeking for appointment of Court Commissioner contending that they are the beneficiaries of the decree and item Nos.1 and 2 are house and site properties, which cannot be divided into seven parts as per the preliminary decree. Respondent No.1, being the beneficiary under the said decree, is unable to enjoy the judgment and decree passed in O.S.No.16/2006 and sought to appoint Court Commissioner to make a public auction of item Nos.1 and 2 properties and deposit the proceeds before the Court and disburse 1/7th share to respondent No.1.
3. The said application was opposed by the petitioner by filing objections contending that the properties in question i.e. item No.1 being house property,
is an ancestral property and other than the said property he does not have any property to reside. Hence, sought to reject the said application.
4. The trial Court, considering the averments made in the application and objections by the petitioner, has allowed the said application - I.A.No.VIII filed by respondent No.1 under Order XXVI Rule 9 of CPC, which is challenged in the present petition.
5. Sri.Chandan M., learned counsel for the
petitioner submits that the trial Court has committed an error in allowing the application filed by respondent No.1 seeking to appoint the Court Commissioner for the purpose of conducting auction of item No.1 schedule property. It is further submitted that the property being the house property measuring 40 X 93 feet, the same can be divided into seven parts as per the decree, without appreciating the said fact, the trial Court has proceeded to allow the application by appointing the Court Commissioner and permitting the auction. It is also submitted that the petitioner is residing in the said
property; the said property is an ancestral property and the petitioner is having sweet memories of his childhood. He seeks to allow the writ petition by setting aside the impugned order passed by the trial Court by directing to divide the subject property into seven shares.
6. Per contra, Sri.A.Abhishek, learned counsel for cavetor/respondent No.1 submits that he has filed an application for appointment of the Court Commissioner for the purpose of conducting auction of the subject properties, which are not divisible into seven parts. The entire property consists of 40 X 93' = 3720 sq.feet. If the said property is divided into seven parts, it will not be useful for any of the parties to the proceedings. Hence, he seeks to dismiss the petition.
7. I have heard learned counsel for the petitioner, learned counsel for caveator/respondent No.1 and perused the material on record.
8. It is not in dispute that the respondent No.1, who has initiated FDP No.16/2011 seeking drawing of final decree in her favour by allotting 1/7th share in the suit
schedule properties including item Nos.1 and 2. The respondent No.1 has filed an application for appointment
of Court Commissioner to conduct public auction of item Nos.1 and 2 i.e., house and site property.
9. During the course of submissions, learned
counsel for respondent No.1 submits that insofar as item No.2 property is concerned, the petitioner has sold the
same during the pendency of the proceedings. Hence, only item No.1, which is house property measuring 40 X 93 feet is required to be divided. However, item No.1 property is not possible to divide into seven shares, if it is divided into seven shares, then each of the party may get approximately 530sq.feet of land. The trial Court, on considering this material on record, has recorded a finding that the property is not available for division, if it is divided into seven shares, it would be very small bit of extent to each of the beneficiaries under the decree. The
said finding of the trial Court is in the interest of all the beneficiaries of the decree. Hence, the trial Court rightly allowed the application seeking for appointment of Court
Commissioner for conducting auction and sale of item No.1 property. I do not find any error in the order passed by the trial Court calling for any interference in the present writ petition.
10. For the reasons stated above, there is no merit in this writ petition. Accordingly, the same is hereby dismissed .
Sd/JUDGE
BSR List No.: 1 Sl No.: 22
2 issues framed by the court
Whether the trial Court committed an error in allowing the appointment of a Court Commissioner to conduct an auction of house property not suitable for physical division among seven beneficiaries.
Whether the refusal to divide ancestral house property into seven equal shares justified interference under Article 227 of the Constitution.
3 provisions across 2 enactments
SRI. MURTHY K. R.
SMT. RAJESHWARI
SMT.VELLIYAMMA
SMT.VIJAYA
- 2 - 3A M.SHANKAR
- 2 - 3B SRI M.JAYAKUMAR
VIJAYKUMAR A. PATIL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
