Second appeal under Section 100 CPC challenging the confirmation of a family auction sale under the Partition Act. The Court held that strict procedures of Order XXI CPC do not apply to partitions involving co-shares, dismissing the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 1930 OF 2023 (PAR)
BETWEEN:
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S/O LATE VISHWARAM AMIN, R/AT D.NO. 10-159/8 BIDDEL HOUSE, PRASHANTH ROAD, SHAKTHINAGAR POST, MANGALORE - 575 016.
5 . SRI VIJAYA KUMAR AGED 67 YEARS, S/O LATE VISHWARAM AMIN, R/AT AITHAPPA KUTEERA, BOLAR FERRY ROAD, MANGALORE - 575 001.
6 . SMT. ANUPAMA AGED 65 YEARS, D/O LATE VISHWARAM AMIN, R/AT D.NO. 1-125, DEVI ANUGRAHA, GORIGUDDA ANGARA MAJAL NEHARU ROAD, KANKANADY MANGALORE - 575 002.
7 . SRI VANARAJ, AGED 62 YEARS, S/O LATE VISHWARAM AMIN, R/AT AITHAPPA KUTEERA, BOLAR FERRY ROAD, MANGALORE - 575 001.
8 . SRI NAGARAJ, AGED 60 YEARS, S/O LATE VISHWARAM AMIN, R/AT D.NO. 1-30/17D DEVI DAYA, KUTTADKA BOLLAGUDDE KUTHADKHA BAJAL, MANGALORE - 575 027
...APPELLANTS (BY SRI.SACHIN B S, ADVOCATE)
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AND:
SRI. B. S. JAIVANDAS SINCE DECEASED BY LRS AGED ABOUT 74 YEARS
BOTH ARE R/AT HOUSE NO.2, 7TH CROSS, 11TH MAIN, SRINIVAS LAYOUT, DEVARA CHIKKANA HALLI, BENGALURU - 560068.
5 . SMT. CHANDRAVATHI, W/O LATE SANJEEVA AMIN, ADULT, C/O M./S CHAMUNDESHWARI TRANSPORT, SHOP NO.7, 3RD CROSS ROAD, SADRAPATRAPPA ROAD, BENGALURU - 560002.
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SMT. RAVIMATHI, SINCE DEAD BY LRS
6 . DR. SATHISH KUMAR AMARNATH S/O LATE KASARGOD NARAYAN AMARNATH, AND LATE MRS. RAVIMATHI, AGED 68 YEARS, R/AT NO.11, RAVI KRUPA SATHISH, BHAVAN, 1ST CROSS, 8TH MAIN, NEAR MOUNT CARMEL COLLEGE, VASANTH NAGAR, BENGALURU - 560001.
7 . SRI S.S. RAMDAS S/O LATE SANJEEVA AMIN, ADULT, R/AT SHILPA SCREENS POINT PROCEEDING HOUSE NO.43, 8TH CROSS, SAMPANGIRAMNAGAR BENGALURU – 560027
NO.8 TO 10 ARE R/AT D.NO. 2125(1) RANJITH NILAYA, AADIMAYE ROAD, JAPPINAMOGARU,
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MANGALURU - 575 007.
12 . SRI HARIDAS S/O LATE PADMANABHA AMIN ADULT, C/O MR. JAGANNATHA V AMIN 5TH CROSS, 1ST MAIN, KAMALA NEHRU EXTENSION, YESHWANTHPUR BENGALURU - 560022.
13 . SMT. SUKHALATHA ADULT, D/O LATE PADMANABHA AMIN AND SMT. JALAJAKSHI NO.11 AND 13 ARE R/AT AITHAPPA KUTEERA BOLAR FERRY ROAD, MANGALORE - 575 002 14 . SMT. ASHALATHA ADULT, D/O LATE PADMANABHA AMIN AND SMT. JALAJAKSHI C/O SHIVAPPA (CLOTH MERCHANT) JEPPU KUDUPADI, MANGALORE DAKSHINA KANNADA - 575 002
15 . SRI MANOJ KUMAR S/O LATE PADMANABHA AMIN AND ADULT, R/AT AITHAPPA KUTEERA BOLAR FERRY ROAD, MANGALORE - 575 002.
…RESPONDENTS
(BY SRI.AMARESH.M, ADVOCATE FOR C/R9;
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R3, 4, 6, 8, 10, 11, 13 TO 15 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.10.2023 PASSED IN RA No.88/2022 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 22.07.2022 PASSED IN FDP NO.16/2008 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by
respondents 5 to 12 in the final decree proceedings, who are assailing the decree passed by the FDP Court
in confirming the sale of suit schedule property in favour of respondent No.14 and consequently, issuing a sale certificate by collecting a proper stamp and thereby granting Rs.1,17,083/- to the plaintiff out of the sale consideration, in satisfaction of the preliminary decree drawn in O.S.No.353/1992.
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and none of the other family members participated in the auction. Therefore, respondent No.14 deposited
25% of the accepted bid amount before the Commissioner and the remaining amount was
deposited before the Court.
respondents in the final decree proceedings, filed writ petition in W.P.No.51104/2014 questioning the auction sale. This Court on examining the rival contentions canvassed by both the parties was not inclined to interfere with the order passed by the Court below wherein auction sale was upheld by the FDP Court. This Court dismissed the writ petition. Paragraphs 7 to 10 of the said order would be relevant, therefore, the same is culled out as under:
“7. A reading of order XXI Rule 90 Code of Civil Procedure would go to show that for seeking setting aside of the auction sale, the applicants,
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or purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale show that there is some material irregularity or fraud in conducting auction. Further sub-rule (2) of Rule 90 clearly mentions no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
8. In the circumstances of the case, the applicants who filed I.A.Nos.8, 10 and 11 though have sought for setting aside of the auction sale have not been able to show what was the irregularity said to have been committed by the said commissioner in putting decreetal property for sale in an auction. As the commissioner report which is produced with the writ petition as Annexure-E clearly go show that attempts were made by the court as well as auctioneer and opportunities were given and also a perusal of the material placed before this court would go to show that auction was taken place in a procedure known to law and with due intimation to parties in accordance with law.
9. As already observed above sufficient opportunities were given and petitioners along with their counsels were present at the time of auction. Therefore, when there is no alleged fraud or irregularity shown by the applicants in the applications in I.A. Nos.8, 10 and 11, the trial court has rightly rejected those applications. Subsequently, since trial court had no power to review the order passed on I.A.Nos.8, 10 and 11 filed by the applicants, it also rejected I.A. Nos. 13 and 15 filed by the applicants therein under
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Section 151 Code of Civil Procedure, by its order dated 13.10.2014.
10. Admittedly, the alleged sale has not reached its finality. According to the learned counsel from both sides, the court auction has not been taken place since the applicants in I.A. Nos.8, 10 and 11 filed their applications under Order XXI Rule 90 read with Section 151 Code of Civil Procedure immediately after auction sale. Further process before confirming the sale and issuance of sale certificate is yet to be undertaken by the FDP court. In such an event, I do not find any irregularity or error in the impugned orders passed by the FDP court which are dated 06.09.2014 and 13.10.2014 warranting interference at the hands of this court.”
accede to the arguments canvassed by the respondents in the above said writ petition. The writ petition was dismissed by recording a categorical finding that no serious prejudice is caused to the present appellants herein on account of auctioning of the property.
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objections raised by the respondents has taken cognizance of the order passed by this Court in W.P.51104/2014. The appellants herein having suffered an order at the hands of this Court again raised objections and contended that the auction sale dated 16.11.2013 is invalid and therefore, cannot be confirmed as it contravenes Rules 138 and 139 of Karnataka Civil Rules of Practice. The appellants contended before the FDP Court that in terms of Rule 138, the final bid was to be accepted by the Court. The appellants also contended that the mandatory requirements of Rules 138 and 139 of Karnataka Civil
Rules of Practice are not adhered to while auctioning the schedule property and therefore, the auction sale being in contravention of Rule 138 is liable to be set aside. The appellants also contended that Order XXI Rule 85 clearly contemplates and stipulates 15 days’
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time to make payment of full purchase money and that the Commissioner lacks jurisdiction to extend the time prescribed. The appellants therefore contended that sale certificate cannot be issued and the auction sale cannot be confirmed as it is found to be in contravention of Rules 138 and 139 of the Karnataka Civil Rules of Practice.
1 ILR 2000 KAR 840
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Partition Act was of the view that the strict compliance of Order XXI of CPC would not arise. The Court taking cognizance of the fact that the suit is of the year 1992 and the fact that the appellants herein have not contested the final decree proceedings and have not come forward to purchase the suit schedule property as it was found to be indivisible/impartible, over ruling the objections, the FDP Court held that Rules 138 and 139 of Karnataka Civil Rules of Practice cannot be strictly adhered to when the auction is within the family. Over ruling the objections, the FDP Court proceeded to draw the decree thereby confirming the sale and consequently, sale certificate is issued by the FDP Court.
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appellate Court having examined the material on record and adverting to Section 7(B) of the Partition Act was also of the view that the procedure contemplated under Order XXI has to be followed only by way of guidance as far as practicable and therefore, the appellate Court was of the view that Section 7 of the Partition Act would over ride the provisions of Order XXI and therefore, appellate Court was also not inclined to interfere with the decree passed by the FDP Court. These concurrent judgments are under challenge.
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contemplated under Rules 138 and 139 of the Karnataka Civil Rules of Practice. To buttress his arguments, he has placed reliance on following
judgments:
" 1. Smt Rathnamma Vs A.V Sharadamma [1999 5 KarLJ 631]
2. K.P Krishnappa Vs B.Gangappa [1982 1 KarLJ 356]
3 . P.S.Ranganathan Vs Aimai N Irani [20000 ILR(Kar) 840].
4. Manjamma Vs S.N Suryanarayana Rao [1986 1 KarLJ 104].
5. Channabasappa Vs Nanjundappa [1986 0 ILR(Kar) 3536].
6. Annappa Reddy Vs S Suresh [1994 4 KarLJ 510].
7. W.P No. 45608-45609/2013(GM-CPC) Nayeemunissa Vs P.Prathap.”
respondent No.14 however supporting the reasons
assigned by the Courts below would point out that the validity or otherwise of the auction sale conducted by
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the FDP Court through Commissioner is upheld by this Court in W.P.No.51104/2014. Referring to the findings recorded by this Court at Paragraphs 7 to 9, he would point out that appellants cannot be permitted to re-agitate the questions that were already answered by the FDP Court and confirmed by this Court in W.P.No.51104/2014.
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Andanuru @ R.B.Andanur and others Vs.
A.Mohan and others). Paragraphs 15 and 16 of the said order would be relevant, which is culled out as under:
“15. Unlike a stranger purchaser in a public auction, a co-sharer himself has a pre-existing right in the suit schedule property. The parties are given an option to go for auction to see that the intrinsic value of the suit schedule property which is the subject matter of the partition suit does not get destroyed. Therefore, the intent of Legislature was to see that the joint family property is not lost to a stranger when one of the co-sharer who is willing to buy the share of other co-sharers and is able to retain the ancestral property by paying the money to the other co-sharers.
16. The principle underlining Section 2 is that, partition cannot be allowed, if by such partition, the intrinsic value of the property sought to be partitioned would be destroyed. In such case, money compensation should be given in lieu of share to which a shareholder may be entitled. Therefore, if the sale is directed under the provisions of Section 2 of Partition Act, then it presupposes that the said sale is not by a public auction. In such event, it is to be presumed that sale is confined only to co-sharers and therefore, it is not warranted by the provisions of CPC. The present auction is conducted under Section 3 of the Act of 1893, therefore, the incidents of ancestral property, unity of possession have to be taken into consideration. Ordinarily, the incidents of joint property and the rights of co sharers in
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the joint family property are given a right in terms of Section 3 of the Act of 1893. Therefore, when a co-sharer or co-sharers apply for leave to buy at a value the share or shares of other co-sharers, the Court proceeds under Section 3 of the Act of 1893 thereby ordering for sale of share or shares to the shareholder who offers to pay the highest price.”
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forward to purchase the suit schedule property and accordingly, filed an application expressing his intention to buy the shares of other family members. Strangely, the appellants have not participated and filed an application seeking leave of the Court to buy the shares of other family members. On instructions and directions issued by the FDP Court, the Commissioner has conducted the auction at the spot and Respondent No.14 having quoted the bid at Rs.14,05,000/- deposited 25% of the bid amount with the Commissioner while the balance bid amount was deposited by Respondent No.14 on 11.12.2013.
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parties and in accordance with law. The said order has attained finality. Now, the appellants are questioning the validity of the auction sale and consequent issuance of the sale certificate on the ground that the auction sale and acceptance of bid runs contrary to Rules 138 and 139 of the Karnataka Civil Rules of Practice. As rightly held by the Courts below, the principles governing Order XXI of CPC cannot be strictly applied to the auctions conducted under Section 7 of the Partition Act. When an auction is sought to be achieved under Section 7 of the Partition Act, the strict riguor and procedure contemplated under Order XXI may not be strictly followed. When a co-sharer proposes to purchase the shares of other family members, it goes without saying that he has a pre-existing right and therefore, the strict procedure contemplated under Order XXI cannot be extended and applied to the auctions
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conducted within the family and that too when an auction is sought by invoking the provisions of the Partition Act. The intent of legislature to bring in a partition act was to see that a joint family property is not lost to a stranger more particularly, when a cosharer is willing to buy the share of other co-sharers and is able to retain the ancestral property by paying money to other co-shares. The above two culled out paragraphs supra clearly indicate that this Court while examining the rights of joint family members participating in a family auction, that too when an auction is held under Partition Act, which presupposes that the sale is not by a public auction and is confined only to co-sharers, strict adherence to the procedure and Rules contemplated under Order XXI may not be followed.
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enforcement of decrees. Therefore, if the auctions are conducted by the Courts while enforcing the decree under Order XXI of CPC, the procedure contemplated therein needs to be mandatorily followed. The Partition Act on the other hand, is a specific legislation governing the partition of joint family ancestral properties. Therefore, the Partition Act deals with division of joint family properties among co-parceners or tenants in common. The Act does not primarily involve auctions but focuses on equitable division of property among joint family members. In summary, while both CPC and Partition Act may involve legal processes, the auctions conducted under the provisions of Order XXI of CPC are generally related to execution of decrees, whereas the Partition Act governs the division of joint family properties among co-owners without primary focus on auctions. Therefore, the procedure contemplated
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under Order XXI of CPC is not strictly applicable to the family auction conducted by a final decree Court by invoking the provisions of the Partition Act.
the decree only gives an indication that they want to protract and deny the plaintiff from enjoying the fruits of the preliminary decree. Having found that the property is impartiable, plaintiff has not objected for auction within the family. Plaintiff has not questioned the auction sale and has also not questioned the sale certificate issued by the FDP Court and consequent final decree drawn in that regard. If the appellants have failed to contest the proceedings and have failed to participate in the family auction, this Court is of the view that no serious prejudice is caused to the appellants herein. The contention of the appellants that the final decree contravenes Rules 138 and 139
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of the Karnataka Civil Rules of practice also cannot be acceded to in the light of the conclusions recorded by this Court in the preceding paragraphs. Therefore, this Court is of the view that no substantial question of law arises for consideration.
The second appeal is devoid of merits and accordingly, stands dismissed.
Sd/JUDGE
*alb/-
3 issues framed by the court
Whether strict compliance with Order XXI of CPC is mandatory for family auctions under Section 7 of the Partition Act?
Whether the sale certificate issued to a co-sharer is valid when other family members did not participate?
Whether substantial questions of law arise in challenging the final decree confirmation?
Colour shows how this judgement treated each authority
P.S. Ranganathan v. Ammai N IraniRelied on¶77
P.S. Ranganathan .vs. Ammai N Irani 1 ILR 2000 KAR 840 · Who else cites this
Rajasekhar Andanuru @ R.B.Andanuru v. A. MohanRelied on¶101
W.P.12119/2022 Rajasekhar Andanuru @ R.B.Andanuru and others Vs. A.Mohan and others
Smt Rathnamma v. A.V SharadammaReferred¶88
Smt Rathnamma Vs A.V Sharadamma [1999 5 KarLJ 631]
K.P Krishnappa v. B. GangappaReferred¶89
K.P Krishnappa Vs B.Gangappa [1982 1 KarLJ 356]
Manjamma v. S.N. Suryanarayana RaoReferred¶91
Manjamma Vs S.N Suryanarayana Rao [1986 1 KarLJ 104]
Channabasappa v. NanjundappaReferred¶92
Channabasappa Vs Nanjundappa [1986 0 ILR(Kar) 3536] · Who else cites this
Annappa Reddy v. S. SureshReferred¶93
Annappa Reddy Vs S Suresh [1994 4 KarLJ 510]
Nayeemunissa v. P. PrathapReferred¶94
W.P No. 45608-45609/2013(GM-CPC) Nayeemunissa Vs P.Prathap
4 provisions across 3 enactments
SRI. B. V. PRAMODHA KUMAR
SMT. VISHALAKHI
SMT. SHASHIKALA
SRI. SHARATH KUMAR
SRI VIJAYA KUMAR
SMT. ANUPAMA
SACHIN SHANKAR MAGADUM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
