Sri. M. Abdul Khuddus Vs Sri. Abdul Gafoor

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NC: 2025:KHC:52652 WP No. 15176 of 2020

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF DECEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 15176 OF 2020 (GM-CPC)

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BETWEEN:

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SRI M. ABDUL KHUDDUS S/O LATE ABDUL KAREEM SINCE DEAD BY HIS LRS.

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SMT. HASMATHUNNISA, W/O LATE. M ABDUL KHUDDUS AGED ABOUT 63 YEARS R/AT NO. 31, DURGAMMA TEMPLE STREET, KALASIPALYA BANGALORE - 560 002.

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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SRI MUSTAQ AHAMED S/O LATE ABDUL KHUDDUS AGED ABOUT 40 YEARS R/AT NO. 151, MAIN ROAD, KALASIPALYAM, BANGALORE - 560 002.

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SMT. JASMIN D/O LATE ADUL KHUDDUS W/O. A M FASI BAIG AGED ABOUT 45 YEARS R/AT NO. 198/1 DAS COMPOUND RV ROAD CROSS BASAVANAGUDI BANGALORE 560 004.

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SMT. HUMERA BEGUM D/OD.LATE. M ABDUL KHUDDUS

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HC-KAR

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W/O. M. ABDUL GAFOOR AGED ABOUT 43 YEARS R/AT NO. 3, MOSQUE ROAD BASAVANAGUDI, BANGLAORE - 560 004.

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SMT. SAMEENA BEGUM D/O LATE. M. ABDUL KHUDDUS, W/O. K MAKSUD ALI, AGED ABOUT 41 YEARS R/AT NO.31, DURGAMMA TEMPLE STREET, KALASIPALYA BANGALORE 560002.

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SMT. NAJMA ZABI D/O. LATE. M ABDUL KHUDDUS, W/O. M S ZABI PASHA, AGED ABOUT 31 YEARS R/AT NO. 64, 1ST FLOOR, RANJI RAO ROAD, BASAVANAGUDI, BANGALORE 560004.

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SMT. SHABANA BANU D/O. LATE. M. ABDUL KHUDDUS, W/O. SYED SHAH MAKSOOD ALI, AGED ABOUT 29 YEARS R/AT SBM ROAD, NELAMANGAL TALUK, BANGALORE 560099.

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…PETITIONERS

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(BY SRI MOHAMED NASIRUDDIN, ADV.)

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AND:

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SRI. ABDUL GAFOOR S/O. LATE. ABDUL KAREEM, AGED ABOUT 58 YEARS R/AT NO. 18/1, 18TH CROSS ROAD, LAKKASANDRA, BANGALORE 560030.

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SRI. M ABDUL LATEER S/O. LATE. ABDUL KAREEM, SINCE DEAD BY HIS LRS,

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HC-KAR

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HASEENA BEGUM W/O. LATE. M ABDUL LATEEF, AGED ABOUT 61 YEARS.

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SMT. HINA KAUSAR D/O LATE. M ABDUL LATEEF, AGED ABOUT 41 YEARS

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SRI. MASOOD ALI S/O. LATE. M ABDUL LATEEF, AGED ABOUT 38 YEARS.

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SMT. SHAMER BANU W/O. LATE. M ABDUL LATEEF, AGED ABOUT 36 YEARS.

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RESPONDENTS 2 TO 5 ARE R/AT NO.8/1, 1ST FLOOR, 3RD CROSS, LALBAGH FORT ROAD, DODDAMAVALLI BANGALORE 560004.

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SRI M. ABDUL RASHEED S/O LATE ABDUL KAREEM AGED ABOUT 59 YEARS.

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6.1 SRI NAUSHAD S/O LATE M. ABDUL RASHEED AGED ABOUT 43 YEARS.

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6.2 SMT. GULNAZ D/O LATE M. ABDUL RASHEED AGED ABOUT 47 YEARS.

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RESPONDENTS 6.1 & 6.2 TOGETHER RESIDING AT NO.58, 2^ND FLOOR 8^TH A MAIN, NEAR WISHDDM CLINIC NEW GURAPPANAPALYA BANGALORE - 560 029.

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HC-KAR

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SMT. ASHYA BEE D/O. LAET. ABDUL KAREEM, SINCE DEAD BY HER LRS, SMT. ZAHEEDA BEGUM, SINCE DEAD BY HER LRS,

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SRI SYED SIRAJ KHAN, S/O LATE. ZAHEEDA BEGUM, AGED ABOUT 46 YEARS R/AT NO. 99, 5TH CROSS, P AND T COLONY, BSA ROAD, BANGALORE 560045.

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SRI SHIRAJ AHAMED KHAN S/O SMT. ZAHEEDA BEGUM, AGED ABOUT 44 YEARS R/AT NO. 8, 1ST CROSS, KOUSER NAGAR, BANGALORE 560032.

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SMT. SHAMEEM TAJ D/O. LATE. ZAHEEDA BEGUM, SINCE DEAD BY HER LRS,

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SRI. MOHAMMED ARIF PASHA, S/O LATE. SHAMEEM TAJ AGED ABOUT 36 YEARS.

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SRI. SYED ANJUM PASHA S/O. LATE. SHAMEEM TAJ, AGED ABOUT 34 YEARS.

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SRI. SYED TAJA MUL PASHA S/O. LATE. SHAMEEM TAJ, AGED ABOUT 32 YEARS.

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RESPONDENTS 9 TO 11 ARE R/AT NO. 6, 2ND MAIN, (REHA MEDICALS), BILAL NAGAR, PILLANNA GARDEN,

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3RD STAGE, BANGALORE 560045.

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SMT. NASEEM TAJ D/O. LATE. ZAHEEDA BEGUM, AGED ABOUT 42 YEARS R/AT NO. 100, SMALL QUARTERS, NEELASANDRA, BANGALORE 560047.

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SMT. NEAM TAJ D/O. LATE. ZAHEEDA BEGUM, AGED ABOUT 40 YEARS R/AT SULTANPALYA, DINNUR MAIN ROD, R T NAGAR, BANGALORE 560032.

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SMT. JABEEN TAJ D/O. LATE. ZAHEED BEGUM, W/O. ABDUL REHMAN, AGED ABOUT 36 YEARS R/AT NO. 21, 3RD CROSS, PILLANNA GARDEN, BANGALORE 560045.

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SMT. SHIREEN TAJ D/O LATE. ZAHEEDA BEGUM, W/O. SRI. JANI BASHA, AGED ABOUT 34 YEARS R/AT NO. 32/2, 7TH CROSS, SOMESWARA NAGAR, JAYANAGAR 1ST BLOCK, BANGALORE 560011.

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SMT. ZUBEDA BEGUM D/O. LATE. ASHYA BEE, AGED ABOUT 71 YEARS R/AT NO. 817, 1ST FLOOR, BESIDE APNA BAZAAR, BSA ROAD, BENALURU 560045.

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SMT. RAFIA BEGUM D/O. ABDUL KAREEM,

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SINCE DEAD BY HER LRS,

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SRI. SIRAJULLA KHAN, HUSBAND OF RAFIZ BEGUM, AGED ABOUT 56 YEARS.

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SRI KHIZERULLA KHAN S/O.L ATE. RAFIA BEGUM, AGED ABOUT 32 YEARS.

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SRI. ZAMIRULLA KHAN S/O. RAFIZ BEGUM AGED ABOUT 27 YEARS.

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RESPONDENTS 18 & 19 ARE R/AT NO. 23, 24, 4TH CROSS NEW GURAPPANAPALYA (DRC POST) BANGALORE 560029.

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SMT. RASHEEDA BEGUM D/O. LATE. ABDUL KAREEM W/O. FARTATHULLA KHAN, AGED ABOUT 54 YEARS R/AT NO. 35/2, 1ST FLOOR, 9TH-A-MAIN, 4TH CROSS, BTM 1ST STAGE, BANGALORE 560051.

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SMT. NOORJAN W/O.LATE. ABDUL SALAM, AGED ABOUT 66 YEARS.

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SMT. SHEERAN BANU D/O.LATE. ABDUL SALAM, AGED ABOUT 31 YEARS.

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SRI. MOHAMMED HANEEF S/O.LATE. ABDUL SALAM, AGED ABOUT 30 YEARS.

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SMT. TASEEN BANU

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D/O.LATE. ABDUL SALAM, AGED ABOUT 29 YEARS.

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RESPONDENS 21 TO 24 ARE R/AT NO. 5/4, 2ND FLOOR, (BESIDE DELUXE WHEEL ALIGNMENT), THIMMAIAH ROAD, SHIVAJINAGAR, BANGALORE 560051.

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…RESPONDENTS

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(BY SRI JAGADISH J.R, ADV., FOR R-1(NOC VK FILED) SRI M.D. RAGHUNATH, ADV., FOR R-22 TO R-24; MS. ANAGHA JAYAPRAKASH, ADV., FOR SRI V. RAMESH BABU, ADV., FOR R-3 TO R-5 & R-17 TO R-19; SRI R. RAJU SHETTY, ADV., FOR R-6(a& b); R-21 SERVED V/O DTD 24.01.2022 PETITION AGAINST R-2 IS DISMISSED AS ABATED V/O DTD 05.12.2022 NOTICE TO R-20 H/S R-15 IS SERVED; V/O DTD:01.04.2024 NOTICE TO R-16 IS H/S V/O DTD: 15.07.2025 NOTICE TO R-7 TO R-14 H/S)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN F.D.P.NO.3/2006 PENDING ONT HE FILE V ADDL CITY CIVIL AND SESSIONS JUDGE (CCH-13) AND SET ASIDE THE IMPUGNED ORDER DTD.5.12.2020.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Petitioners are before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set-aside the order dated 05.12.2020 passed in FDP No.3/2006

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by the Court of V Addl. City Civil and Sessions Judge, Benglauru City.

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Heard the learned counsel for the parties.

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Facts leading to filing of this petition as revealed from the records are, OS No.3721/1985 was filed seeking the relief of partition and separate possession of the suit schedule property. The said suit was decreed on 28.01.2002. Final order in terms of the preliminary decree passed in OS No.3721/1985 was passed by the Trial Court in FDP No.3/2006 on 18.07.2012. Challenging the same, petitioners herein had filed RFA No.1479/2012 which was dismissed by this Court on 30.01.2020 with a direction to the Trial Court to conclude the final decree proceedings expeditiously. Thereafter, the order impugned was passed by the Trial Court partly accepting the Court Commissioner's Report dated 14.08.2009 which was filed in FDP No.3/2006. Aggrieved by the said order, petitioners are before this Court.

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Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that the Trial Court has

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misread the order passed by this Court in RFA No.1479/2012. No enquiry on the Sale Deeds has been held by the Trial Court inspite of therebeing a specific direction in RFA No.1479/2012. He submits that petitioners herein have filed applications under Sections 2 and 3 of the Partition Act, 1893 and till date, no orders have been passed on the same.

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Per contra, learned counsel for the respondents have argued in support of the order impugned. They submit that inspite of therebeing a specific direction to the Trial Court to conclude the final decree proceedings within a time frame, the petitioners have been raising unnecessary objections which has prolonged the disposal of the final decree proceedings. They submit that as on the date of order, no application was filed by any of the parties under Sections 2 and 3 of the Partition Act, 1893. Therefore, the order impugned cannot be found fault with. Accordingly, they pray to dismiss the petition.

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Petitioners herein had filed RFA No.1479/2012 challenging the judgment and decree dated 18.07.2012 passed in FDP No.3/2006. In the said appeal, a specific contention was raised on behalf of the petitioners that in the earlier appeal filed

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challenging the preliminary decree i.e., RFA No.556/2002, when the matter was remanded, there was a specific direction to hold an enquiry with regard to the Sale Deeds which were executed in favour of the first defendant in respect of undivided share of suit schedule A property and the same has not been complied. The said contention was considered and in paragraph Nos.76 and 77 of the order passed in RFA No.1479/2012, it has been observed as follows:-

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"76. In this connection, Final Decree Proceedings are not made optional to the parties. On the other hand, there was definite direction of the court to conduct final decree proceedings in order to adjudicate the particular point. In this connection, there was no alternative except to conduct final decree proceedings for the trial court and also to the parties to participate therein to adjudicate the matter. In this connection, it is not a remand, but it is a process wherein this court ordered the trial court to deal with and dispose of the matter pertaining to the sale deeds. The words do not matter function matters.

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77. In the circumstances, I do not find that the direction for remand has been wrongly understood by the trial court nor there is prejudice

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in the direction. Therefore, I do not find any infirmity, illegality or perversity in the judgment and decree passed by the learned trial Judge. The appeal is devoid of merits. It is dismissed. No costs."

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Having dismissed RFA No.1479/2012, considering the fact that the suit is of the year 1985 and the final decree proceedings was of the year 2012, this Court had directed the Trial Court to conclude the final decree proceedings expeditiously but not later than a period of four months from the date of receipt of certified copy of the judgment passed in RFA No.1479/2012. In the said order, this Court has also taken note of the fact that Commissioner appointed in FDP No.3/2006 had already submitted his report stating that it is not possible to divide the suit schedule property and it is under these circumstances, this Court had observed that trial Judge would workout means for suitable alternative as per law.

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Petitioners herein had thereafter filed objections for acceptance of the Commissioner's Report that was filed on 14.08.2009. The Trial Court having referred to the operative portion of the order passed by this Court in RFA No.1479/2012

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which was disposed of on 30.01.2020, in paragraph Nos.25 to

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27 of its order, has observed as follows:-

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"25. It is pertinent to note here that, on careful scrutiny of entire material on record, I come to the conclusion that, considering the nature of property, number of share holders as well as report of the Commissioner and cross-examination referred supra, petition schedule property is neither feasible nor divisible by metes and bounds. For these reasons the report of the Court Commissioner to the extent of fixation of value of the property and allotment of share to the petitioner cannot be accepted and in so far in respect of age and condition of the building as well as infeasibility for division of schedule 'A' property deserves to be accepted.

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26. In the case on hand none of the parties have made offer to participate in the auction sale and to bid the share among them as required U/s 3 of the Partition Act. So when the division of schedule 'A' property cannot reasonably and conveniently be made then to pass an order directing to sell the same through public auction and to deposit the sale proceeds as required U/s 2 of the Partition Act appears to be proper and necessary.

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27. With regard to fixation of reserve price of the property in dispute is concern D.W. 4 the Commissioner has stated in Ex.D.11 report that since the age of the 9 FDP No.3/2006 dilapidated building situated in Kalasipalya area is approximately about 55 years and valuation of vacant site would be at Rs.6,000/- per square feet, which has been disputed by the L.Rs of respondent No.1 contending that, as per copy of communication of value of the property situated at Nawab Hyder Ali Khan Road, Bengaluru-02, issued by the Senior Sub- registrar, Bengaluru dated 30/07/2008 it would not be more than Rs.2,000/per square feet. In this regard, none of the parties or their counsels have furnished latest valuation chart issued by the office of the concerned subregistrar or Gazette notification so as to fix reserve price before passing orders for holding public auction sale of the property in dispute. As such, it is also necessary to direct the parties/counsels to furnish particulars of the market value of the property in dispute as on today along with suggesting name of the court commissioner and other particulars. Therefore, having regard to the facts and circumstances of the case I am of the opinion that, to pass an order directing to sell the schedule property through public auction and to

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deposit the sale proceeds as required U/s 2 of the Partition Act appears to be proper and necessary keeping liberty to the parties to the petition to participate in the said bid with prior leave of the court in accordance with law. For the aforesaid reasons and arguments report of the court commissioner deserves to be partly accepted. Hence, I answer Point No.1 partly in the affirmative and Point No.2 is in the affirmative and proceed to pass the following,

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O R D E R

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The report of the court commissioner dated 14.08.2009 is partly accepted. Consequently the schedule property should be sold through public auction and to deposit the sale proceeds in the court keeping liberty to the parties to participate in the bid with prior leave of the court in accordance with law subject to following conditions:-

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1) The petitioners are permitted to participate in the auction sale along with public and first preference should be given to the petitioners subject to obtaining prior leave of the court within the stipulated period on or before next date of hearing.

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2) The parties/counsels are directed to furnish particulars regarding market value of the property in dispute along with report/ copy of gazette notification pertains to market value in respect of suit schedule 'A' property from the concerned office of the sub-registrar on or before next date of hearing without fail so as to fix reserve price of the property.

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3) They shall suggest the name of the advocate commissioner by fixing/depositing fees in the court with intimation to the court commissioner within seven days and commissioner shall take the warrant along with necessary documents by hand in the office.

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4) Parties to the petition shall file memo of instructions before this court or before the court commissioner.

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5) The Commissioner shall issue prior notice to both the parties/counsels by taking necessary documents for execution of warrant.

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6) The Commissioner shall issue notice in respect of date/time & place of auction sale

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at the spot and final bid at the court in a daily/local news paper for vide publication.

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7) It is made clear that if Commissioner find highest bidder, then 25% of the amount of purchase money shall be deposited by the auction purchaser immediately.

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8) The remaining amount of purchase money shall be paid by the purchaser in the court before the closure of 15th day from the date of final bid to be taken place at the court.

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Since there is specific directions of the Hon'ble High Court in RFA No.1479/2012 dated 03/01/2020 to complete final decree proceedings within four months from the date of receipt of certified copy which is about to expire on 28/12/2020 itself, but to complete the final decree proceedings by following aforesaid procedure and after final bid it may take further considerable time, which requires extension of time.

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Office to submit a letter seeking further extension of reasonable time before winter vacation commences in this month without fail.

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Hence, directed to comply the aforesaid conditions on or before next date of hearing, call on 11/12/2020."

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I do not find any illegality or irregularity in the said order

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which is passed taking into consideration the order passed by this Court in RFA No.1479/2012. It is not in dispute that as on the date when the order impugned was passed, no application was filed under Sections 2 and 3 of the Partition Act, 1893, by any of the parties. This Court in RFA No.1479/2012 taking into consideration that the Court Commissioner in his Report had stated that the suit schedule property cannot be divided had directed the Trial Court to workout means for suitable alternative as per law and complete the final decree proceedings. The Trial Court having rejected the objections of the petitioners for the Court Commissioner's Report dated 14.08.2009, for the reasons assigned in the order impugned has partly accepted the Court Commissioner's Report subject to certain conditions. Perusal of the conditions would go to show that in the impugned order, the Trial Court has permitted the parties to participate in the public auction subject to certain conditions.

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Though in condition (1), it is mentioned that petitioners are permitted to participate in the auction sale along with public and first preference should be given to the petitioners subject to obtaining prior leave of the court within the stipulated period on or before the next date of hearing, learned counsel for the respondents fairly submit that it was a mistake committed by the Trial Court after having observed in the operative portion of the order that all the parties are at liberty to participate in the public auction. They submit that condition (1) in the order impugned may be suitably modified and all the parties in FDP No.3/2006 may be permitted to participate in the auction sale. If such an order is passed, even the grievance of the petitioners that no orders have been passed on his application filed under Section 2 and 3 of the Partition Act, 1893, can be taken care of. Accordingly, the following order:-

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The writ petition is dismissed confirming the order passed by the Trial Court accepting the Commissioner's Report dated 14.08.2009 subject to conditions. However, condition (1) is modified and the same shall read as follows:-

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"(1) Both the parties are permitted to participate in the auction sale along with public and first preference should be given to the parties, subject to obtaining prior leave of the Court within the stipulated period on or before the next date of hearing."

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In view of the disposal of the main petition, pending interlocutory applications, if any, do not survive for consideration. Accordingly, they are dismissed.

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Sd/-

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(S VISHWAJITH SHETTY) JUDGE

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DN List No.: 1 Sl No.: 24

Sri. M. Abdul Khuddus v. Sri. Abdul Gafoor

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Sri. M. Abdul Khuddus v. Sri. Abdul Gafoor

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