B. Krishnamurthy Vs Sri. L. M. Kodandarama Shetty

SRI. K.N. NIRANJAN S/O. LATE K. NARASIMHA, AGED ABOUT 67 YEARS, R/AT NO.43, FLAT NO.101, III MAIN ROAD, PUTTENAHALLI, J.P. NAGAR, 7TH PHASE, BENGALURU-560 078.

¶24

SRI. K.N. MAHENDRA S/O. LATE K. NARASIMHA, AGED ABOUT 65 YEARS, R/AT NO.86, II CROSS, III BLOCK, NARAYANANAGAR, DODDALASANDRA POST, BENGALURU-560 062.

¶25

SMT. T.S. VIMALA W/O. T.N. SUNDRANATH, AGED ABOUT 58 YEARS, R/AT NO.3518/A, "TUNGA", 4TH MAIN ROAD, 6TH CROSS, M.C.C. 'B' BLOCK, DAVANAGERE-577 004.

¶26

SMT. C.L. PRAMEELA @ PREMA W/O. C. LAKSHMAIAH SETTY, AGED ABOUT 73 YEARS,

¶27

3 - NC: 2026:KHC:10822 WP No. 34919 of 2025

¶28

HC-KAR

¶29

R/AT NO.11-4-29C, RAMAR KOIL STREET, CHITTOOR, ANDHRA PRADESH-517 001.

¶30

SRI. B. G. VIJAYALAKSHMI W/O. B.K. GANGARAJ, AGED ABOUT 67 YEARS, R/AT NO.2701, 1ST FLOOR, 17TH 'C' CROSS, VTH MAIN ROAD, BANASHANKARI II STAGE, BENGALURU-560 070.

¶31

SMT. T. GAYATHRI W/O. T. THAYAMMANAVAR, AGED ABOUT 61 YEARS, R/AT NO.487, 38TH CROSS, JAYANAGAR, 8TH BLOCK, BENGALURU-560 082.

¶32

SRI. B. NAGARAJA GUPTA S/O. LATE B.L. BETTAIAH SETTY, AGED ABOUT 77 YEARS, R/AT NO.717, 17TH MAIN ROAD, 38TH CROSS, 4TH 'T' BLOCK, JAYANAGAR, BENGALURU-560 011.

¶33

SRI. B. LAKSHMANA GUPTA S/O. LATE B.L. BETTAIAH SETTY, AGED ABOUT 69 YEARS, R/AT "VAISHNAVI", NO.1251/B, 23RD MAIN ROAD, 23RD CROSS, B.S.K. II STAGE, BENGALURU-560 070.

¶34

SRI. B. SRIDHAR MURTHY S/O. LATE B.L. BETTAIAH SETTY, AGED ABOUT 63 YEARS, R/AT NO.52, C.T.B. ROAD, 2ND CROSS, K.R. ROAD, 2ND STAGE, BANASHANKARI, BENGALURU-560 070.

¶35

4 -

¶36

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶37

HC-KAR

¶38

SRI. K. SEETHARAMAIH SETTY S/O. K. ANANTHAPADMANABHAIAH, AGED ABOUT 88 YEARS,

¶39

SRI. K.S. RAVIKUMAR S/O. K. SEETHARAMAIAH SETTY, AGED ABOUT 54 YEARS,

¶40

SMT. H.M. LAKSHMI W/O. H. V. MANJUNATH, AGED ABOUT 53 YEARS, R/AT NO.386, ELLEMALAPPA ROAD, BANGARPET-563 114.

¶41

SMT. K.S. VIDYA D/O. K. SEETHARAMAIAH SETTY, AGED ABOUT 48 YEARS,

¶42

RESPONDENT NOS.14, 15, 17 ARE R/AT NO.126, 2ND CROSS, 1ST FLOOR, K.G. NAGAR MAIN ROAD, BENGALURU-560 019.

¶43

…RESPONDENTS

¶44

(BY SRI. K.S. NAGARAJA RAO, ADVOCATE FOR C/R.1.)

¶45

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE IN CCH-7 AT BANGALORE IN FDP NO.88/2006 VIDE ANNEXURE-A BY ORDERING FRESH PUBLIC AUCTION OF PLAINT SCHEDULE B PROPERTY BY ALLOWING IA NO.5 IN THE SAID PROCEEDINGS VIDE ANNEXURE-D, ETC.

¶46

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶47

5 -

¶48

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶49

HC-KAR

¶50

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

¶51

ORAL ORDER

¶52

This petition by respondent No.3 in FDP No.88/2006 on the file of the XXII Additional City Civil and Sessions Judge, Bengaluru is directed against the impugned order dated 04.07.2025 passed on I.A.No.5, whereby, the said application- I.A.No.5 filed by the petitioner under Section 151 of Code of Civil Procedure, 1908 (CPC) to recall the order dated 11.11.2011 directing public auction of 'B' schedule property was rejected and to order fresh public auction of the said property was rejected by the trial Court.

¶53

Heard learned counsel for the petitioner and learned counsel for caveator-respondent No.1 and perused the material on record.

¶54

Learned counsel for the petitioner would invite my attention to the material on record, in order to contend that the provisions contained in Order XXI Rules 84 and 85 of the Code of Civil Procedure, 1908 (CPC) had not been complied with by the auction purchaser, who had not only failed to deposit 25% of the auction / bid amount on the very same day, but had also not deposited the balance 75% within a period of 15 days as contemplated in Order

¶55

6 - NC: 2026:KHC:10822 WP No. 34919 of 2025

¶56

HC-KAR

¶57

XXI Rules 84 and 85 of CPC and consequently, the said auction and all further proceedings in pursuance thereof, were vitiated and the same deserves to be set aside. It is submitted that though the aforesaid order was passed on 11.11.2011, there were several intervening proceedings and finally, the petitioner filed the instant application, which was erroneously rejected by the trial Court by passing the impugned order, which deserves to be set aside.

¶58

Per contra, learned counsel for the caveator - respondent No.1 would invite my attention to the earlier round of litigation in W.P.No.53669/2017 passed by this Court rejecting the very same contention/claim of the petitioner, who was the writ petitioner in the said petition and the said order had attained finality and become conclusive and binding upon the petitioner. It is also submitted that pursuant to the impugned order, the final decree proceedings have been closed on 06.09.2025 and respondent no.1 had taken possession of schedule 'B' property on 20.02.2026 and as such, nothing further survives in the present petition and the same is liable to be dismissed.

¶59

7 -

¶60

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶61

HC-KAR

¶62

By way of reply, learned counsel for the petitioner submits that the earlier order passed by this Court in W.P.No.53669/2017 does not advert to these aspects of the matter and as such, the impugned order deserves to be set aside. In support of his submission, learned counsel for the petitioner relied upon the following judgments:-

¶63

"1) Gas Point Petroleum India Ltd Vs Rajendra Marothi & Ors, reported in (2023) 6 SCC 391"

¶64

2) BALRAM v. ILAM SINGH, reported in (1996) 5 SCC 705

¶65

3) Judgment dated 02.07.2024 passed by this Hon'ble Court in Civil Revision Petition No.779/2023 (I0)Sri.Yuvaraja Vs Smt. Varadamma and others"

¶66

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

¶67

Before adverting to the rival contentions, it would be necessary to refer to the earlier round of litigation initiated by the petitioner in W.P.No.53669/2017, wherein an identical claim of the petitioner was rejected by this Court by noticing the conduct of the petitioner in participating in the proceedings and being a party to the compromise decree, which estopped him from subsequently

¶68

8 -

¶69

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶70

HC-KAR

¶71

assailing the auction sale held in favour of the auction purchaser. The various contentions urged by the petitioner were rejected by this Court by holding as under:

¶72

"1. The present writ petition is filed aggrieved by the order passed in I.A.No.1/2016 dated 10.10.2017 in Ex.No.2371/2012 by XXII Addl.City Civil & Sessions Judge, Bengaluru (C.C.H.No.7).

¶73

2. The petitioner before this Court is the defendant in the suit. The suit i.e., O.S.No.5590/1996 was filed seeking partition in respect of the plaint A, B and C schedule properties and the plaintiff claimed 1/10^th share. The property as far as 'C' schedule is concerned is dismissed and as far as Schedule 'A' and 'B' is concerned, the suit is decreed. Aggrieved there by FRA.No.2411/2006 was filed, which came to be allowed on 24.07.2008.

¶74

3. The parties have filed the, compromise memo.

¶75

4. Paragraph Nos.8 and 9 of compromise memo,

¶76

reads as under:

¶77

"8. Both the appellants and the respondents have mutually agreed that the 'B' Schedule property cannot be divided equally among themselves and cannot be put into separate possession and thereby the appellants and the respondents have agreed to sell the 'B' Schedule property in public auction in FDP.No.88/2006, pending before the City Civil Court, Bengaluru within 10.04.2008 by extending full co-operation between themselves.

¶78

9 -

¶79

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶80

HC-KAR

¶81

9. The appellants and respondents have mutually agreed to divide the sale proceeds among themselves according to the share declared in the preliminary decree after deducting all the legal expenses for the sale of the 'B' schedule property in public auction. The appellants and respondents are entitled to bid in the auction without initial deposit."

¶82

5. The suit 'B' schedule property is property No.17, (formerly No.111/2), situated in 5^th cross, New Kalasipalyam layout, Bengaluru measuring 30 x 80 square feet. As per the same, the auction was conducted on 30.05.2011 and highest bidder has to deposit 25% of the bid amount. As on 14.06.2011, 15 days time was expired. On 08.06.2011,l the highest bidder filed a memo to deposit the amount. On 11.07.2011, the amount was deposited, but it was deposited to the account of the petitioner. Hence, they have come up with these two applications before the Court. On 16.11.2016, 3^rd respondent has filed an application under Section 151 of CPC, praying to permit the petitioner herein to retain his share in the property and permit or direct the auction purchaser to withdraw the amount deposited by him without claiming the share of 3^rd respondent in the interest of justice and equity. Application under Order XXI Rule 29 of CPC is filed praying to stay the proceedings in the execution petition, pending disposal of the case in FDP.No.88/2006. Both these applications came to be dismissed by the Court by virtue of this order impugned.

¶83

6. With regard to the application field under Section 151 of CPC, the Court has passed an order on 11.11.2011 directing the issuance of sale certificate to the purchasers, who are the sisters. The sale certificate was registered on 15.06.2012 in favour of sisters. The petitioner before this Court,

¶84

10 -

¶85

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶86

HC-KAR

¶87

who is the brother-3^rd respondent, has participated in the proceedings in RFA.No.2411/2006 and he has not challenged the public auction as well as sale certificate. 3^rd respondent is estopped from seeking any relief but to retain his share in 'B' Schedule property by way of application. In FDP, Memo of Calculation is said to have filed on 02.04.2014 and the Court has ordered for the payment vide order dated 17.09.2014 stating that the amount is held in the Court until the possession of the 1^st floor of property has bee delivered to the sisters by the brother, who is the petitioner herein.

¶88

7. The Court had recorded that RFA.No.649/2012, which was preferred against the order dated 11.11.2011 i.e. Sale Certificate, which is issued in favour of the sisters. The said appeal was dismissed as having become infructuous. The Court has also observed from the records as well as from the affidavit in I.A, the order dated 17.09.2014 has been complied or not when there is already an order as to the share of 3^rd respondent to be held in the Court and then again passing an order on the very same claim of 3^rd respondent will not arise. There is an order that the share of the 3^rd respondent is to be handed over only after possession is delivered to the petitioner Nos.2 to 4 pertaining to the 1^st floor of the property. When such being the case, the prayer as sought for in the above I.Α. cannot be permitted at this stage and another I.A., to retain the share and to permit only the withdrawal of the amount deposited, in view of the order, which is already passed by the Court, it cannot be considered. Accordingly, both the applications are dismissed. Aggrieved by the same, this writ petition is filed.

¶89

8. This writ petition is filed in the year 2017. Learned counsel for the petitioner has filed I.A.No.1/2018 under order 6 Rule 17 of CPC read with Article 226 of the Constitution of India

¶90

11 -

¶91

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶92

HC-KAR

¶93

to raise additional facts and grounds. As per the provision mandates, amount has to be deposited after the completion of auction. In this case, it has not been deposited. As such, serious defaults has been committed by the auction purchasers. On the date of auction, 25% of the bid amount has to be deposited and balance amount has to be paid within 15 days thereafter and in the event if there is a default to make payment within that date, the auction would stand abated on its own and any subsequent deposit beyond 15 days is void and it is a nullity in the eye of law.

¶94

9. Further, the other ground raised is that under the Indian Partition Act, no separate procedure is contemplated so far as the auction of the property is concerned. Therefore, any provision available in the Partition Act, is only an enabling provision and procedural aspects are concerned, the procedure contemplated under Civil Procedure Code is required to be followed. Under Order 21 Rules 84, 85, 86 and 90 of the CPC, a procedure is contemplated so far as conducting the auction and making deposits of the bid amount is concerned. According to the said provision, on the date of the bid, the highest bidder has to deposit 25% of the bid amount and balance 75% shall be deposited on or before 15 days from the date of the auction. As contemplated, as it was not done, the whole auction procedure is vitiated and in the grounds they have relied on the judgment of the Hon'ble Supreme Court in the case of BALRAM v. ILAM SINGH and also in the case RAM KARAN GUPTA v. J.S.EXIM LIMITED AND OTHERS . The petitioner wants to amend his pleadings by virtue of this application.

¶95

10. The learned Senior counsel appearing for the petitioner had argued in the similar lines and submitted that as the amount is paid beyond the stipulated time, they are not

¶96

12 -

¶97

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶98

HC-KAR

¶99

entitled for the benefit and the entire sale is vitiated. Now the only procedure that is available is to set aside the sale and to conduct a fresh auction. It is submitted that as far as the sale pertaining the 3^rd respondent, who is the petitioner herein is concerned, his prayer needs to be allowed and further the amount that is deposited can be given back. He submits that Section 2 and 3 of Partition Act is only a enabling provision and procedure that is contemplated in the CPC has to be followed and there cannot be any distinction between the auction in respect of partition suit and auction in respect of any other auction.

¶100

11. Learned counsel has also relied on the judgment of Hon'ble Apex Court in the case of RAO MAHMOOD AHMAD KHAN V. RANBIR SINGH AND OTHERS I, wherein he has relied on paragraph No.12, which reads as under:

¶101

12. The question which now remains to be considered is whether the deposit of 25 per cent of the bid amount by the purchaser- Respondent No. 1 herein by cheque instead of cash would be a valid deposit within the meaning of Rule 285-D of the Rules. Admittedly, respondent No. 1 was declared purchaser of the property in question on 18.10.1973. According to the learned counsel for the appellants neither the deposit of 25 per cent of the bid amount was made in cash nor by cheque on 18.10.1973 as the cheque was encashed on 22.10.1973. While according to the learned counsel appearing for the auction purchaser respondent No. 1 the cheque was tendered on 18.10.1973 itself which was encashed on 22.10.1973 and the

¶102

13 -

¶103

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶104

HC-KAR

¶105

amount was deposited in the Government treasury 22.10.1973. The question is whether such a payment by cheque could be regarded as a valid deposit within the meaning of Rule 285-D. As discussed above Rule 285-D is a mandatory rule according to which if 25 per cent of the bid amount is not deposited immediately the land shall forthwith be again put up and sold. In other words on the failure of the purchaser to deposit 25 per cent of the bid amount immediately the land shall be re-sold after such failure the very same day. If for instance the 25 per cent of the bid amount is accepted by cheque and subsequently the purchaser changes his mind and advises his banker not to encash the cheque or there is no amount in the account of the purchaser in the bank and the cheque is bounced, the purpose of Rule 285-D would be frustrated and thus the mandatory provision would be rendered nugatory. The result would be that neither the authorities would be in a position to forfeit any amount of the purchaser nor the authority would be in a position to defray the expenses of the sale as contemplated by Rule 285-E. The other consequence that will follow is that the re-sale of land will have to be delayed and a fresh proclamation for sale has to be issued as provided by Rule 285-G. It, therefore, appears to us that Rule 285-D does not contemplate any payment by cheque but a cash deposit of 25 per cent of the bid amount has to be made in accordance with the requirement of the rule, otherwise the very purpose of the mandatory Rule 285-D would be

¶106

14 -

¶107

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶108

HC-KAR

¶109

frustrated and rendered nugatory. In these facts and circumstances we are of the view that deposit of 25 per cent of the bid amount by cheque will not be a valid tender within the meaning of the rule. This was also the view taken by a Division Bench of the Allahabad High Court in the case of Hira Lal and the Learned Single Judge was not right in ignoring the said view by observing that it was obiter. The High Court of Madhya Pradesh in MI s. Progressive Industrial Enterprises v. Bank of Baroda - A.I.R. 1989 Μ.Ρ. 177 also expressed the view that deposit of 25 per cent of the bid amount by cheque which was not encashed on the date on which the person was declared purchaser but on a later date, there was no compliance of Order 21 Rule 84 (C) C.P.C.

¶110

12. The another judgment he relied on is BALRAM SON OF BHASA RAM v. ILAM SINGH AND OTHERS. Learned counsel has also relied on the judgment of Hon'ble Apex Court in the case of RAM KARAN GUPTA v. EXIM LIMITED AND OTHERS , wherein the paragraphs numbers 14, 19, 22, 23, which reads as under:

¶111

14.We are in full agreement with the order passed by the Executing Court as well as the High Court that the auction purchaser had deposited 25% of the amount on 8.10.2010. When the auction is for such a large amount, running in crores of rupees, nobody can expect the auction purchaser to pay the amount in cash on the fall of the hammer. So far as the instant case is concerned, facts would reveal that

¶112

15 -

¶113

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶114

HC-KAR

¶115

the auction purchaser had paid Rs.2.40 crores, may not be in cash, but by way of drafts on 8.10.2010 and the balance amount i.e. 75% of the bid amount was also paid on 23.10.2010, consequently, in our view, the auction purchaser had complied with the provisions of Order 21 Rules 84 and 85 CPC.

¶116

19.A Constitution Bench of this Court in Jammulu Ramulu (had occasion to consider the scope of Order 21 Rule 92(2) and Rule 89 CPC. Overruling P. K. Unni (supra), this Court held as follows:

¶117

15. A plain reading of Order 21 Rule 92 CPC shows that the court could either dismiss an application or allow an application. Order 21 Rule 89 CPC prescribes no period either for making the application or for making the deposit. The Limitation Act also prescribes no period for making a deposit. However, Article 127 of the Limitation Act prescribes a period within which an application to set aside a sale should be made. Earlier, this was 30 days, now it has been enhanced to 60 days. Unless there was a period prescribed for making a deposit, the time to make the deposit would be the same as that for making the application. This is so because if an application is made beyond the period of limitation, then a deposit made at that time or after that period would be of no use".

¶118

Normally, when the legislature wishes to prescribe a period for making a deposit, it does so by using words to the effect "no deposit shall

¶119

16 -

¶120

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶121

HC-KAR

¶122

be made after … days" or "a deposit shall be made within … days" or "nо application will be entertained unless a deposit is made within … days". Order 21 Rule 92(2) CPC does not use any such expressions. The relevant portion of Order 21 Rule 92(2) CPC reads as follows:

¶123

"92. (2) Where such is made and application allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale, … court shall make an order setting aside the sale:" Thus Order 21 Rule 92(2) CPC is only taking away discretion of the court to refuse to set aside the sale where an application is made and allowed and the [pic]deposit has been made within 30 days from the date of sale. It is thus clear that Order 21 Rule 92(2) CPC is not prescribing any period limitation within which a deposit has to be made.

¶124

17. Viewed in this context the intention of the legislature in extending the period under Article 127 of the Limitation Act may be seen. It is very clear from the Statement of Objects and Reasons, which have been set out hereinabove, that the period under Article 127 of the Limitation Act was extended from 30 days to 60 days in order to give more time to persons to make deposits. The legislature has noted that the period of 30 days from the date of sale was too short and often caused hardships because judgment-debtors usually failed to arrange for

¶125

17 -

¶126

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶127

HC-KAR

¶128

money within that period. The question then would be whether by merely amending Article 127 of the Limitation Act the legislature has achieved the object for which it increased the period of limitation to file an application to set aside sale."

¶129

The Constitution Bench held that all that Order 21 Rule 92(2) CPC provides is that if the deposit is made within 30 days from the date of sale and an application is filed then the court would have no discretion but to set aside the sale. The Court held that (Jammulu Ramulu case, SCC p.80, para 18)

¶130

18. that does not mean that if the deposit is made after 30 days the court could not entertain the application. If the deposit is made beyond the period of 30 days, but within the period of 60 days, then it will be within the discretion of the court whether or not to grant the application.

¶131

22. We notice, in this case, there was no reference at all to the provisions of Order 21 Rule 89 in the application filed by the appellant on 1.12.2010, be that it may, even then the appellant had not complied with the mandatory requirements of depositing the amount. Clause (a) of Subrule (1) of Rule 89 of Order 21 requires the applicant to deposit in Court 5 per cent of the purchase money for payment to the auction-purchaser. Deposit of the requisite amount in the Court is a condition precedent or a sine qua non to an application for setting aside the execution of sale and such a amount must be paid within a period

¶132

18 -

¶133

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶134

HC-KAR

¶135

specified in the rule and if the deposit is made after the time-limit, the application must be dismissed. The deposit made under Rule 89 of Order 21 CPC should be unconditional and unqualified and the decree holder or the auction purchaser should be able to get the amount at once.

¶136

23. We have already indicated that the rule is in the nature of a concession shown to the judgment-debtor, so he has to strictly comply with the requirements thereof and a sale will not be set aside unless the entire amount specified in sub-rule (1) is deposited within 60 days from the date of the sale and, if it is beyond 60 days, the Court cannot allow the application. We have already found that the appellant-judgment-debtor did not pay the amount within the stipulated time and he only made an application on 1.12.2010 without depositing the amount and hence the Court cannot entertain such an application and bound to confirm the sale which, in this case, the Court did on 23.10.2010.

¶137

13. Based on these judgments, learned Senior counsel submits that the sale that has been conducted and all the subsequent proceedings are vitiated and the entire sale process has to be set aside. He has also relied on the judgment of this Court in Civil Revision Petition No.779/2023 in the case of SRI.YUVARAJ AND SMT. VARADAMMA AND OTHERS. Relying on the said judgment, it is submitted that learned judge has clearly observed that whether the sale under the other proceedings or suit for partition, it will not make any distinction and the Court have to follow the principles laid down under the Order XXI of the CPC. But once the illegality of not depositing

¶138

19 -

¶139

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶140

HC-KAR

¶141

the auction price within the statutorily prescribed timelines are noticed when the records were perused and basing on that Court has to come to the conclusion that the very auction sale is rendered void by the non-deposit of the auction price within the time frame provided under Order XXI Rules 84 and 85 of the CPC.

¶142

14. Learned Senior counsel has also relied on the judgment of Hon'ble Apex Court in the case of GAS POINT PETROLEUM INDIA LIMITED v. RAJENDRA MAROTHI AND OTHERS , wherein he has relied on paragraph No.31.

¶143

31. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is evident that there is noncompliance of mandatory provisions of Order 21 Rules 85 and therefore, the sale was vitiated.

¶144

15. Based on these judgments, the Learned Senior counsel submits that the order impugned has to be set aside.

¶145

16. Learned counsel for respondent has drawn the attention of this Court to the order passed in RFA. No. 7411/2006 and the compromise memo, particularly paragraph Nos.8 and 9 of the compromise memo, where the respondents have mutually agreed to sell the property In a public auction which is the part of compromise decree that is passed and it is not open to any of the parties to agitate on the aspect that the amount has to be returned to the auction purchaser and he may be permitted to retain his share of the property. The application 1.A.No.1/2016 goes contrary to the compromise decree and the parties cannot come up with such a plea and it is not permissible to act contrary to the

¶146

20 -

¶147

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶148

HC-KAR

¶149

compromise decree passed by the Court, which is binding on all the parties.

¶150

17. He has drawn the attention of the Court to Section 3 of the Partition Act, 1893. He submits that Section 3 is an exception to Order XXII Rule 82(2) of CPC and the same would not apply for the auction purchaser in respect of a partition suit. He relied on the judgment of this Court in W.P.No.12119/2022 in the case of RAJASEKHAR ANDANURU @ R.B.ANDANUR AND OTHERS

¶151

V. A.MOHAN AND OTHERS, wherein the issue that fall for consideration before the Co-ordinate Bench of this Court was:

¶152

a. Whether the provision of Order XXI Rule 84 of CPC are applicable to the auction conducted under Section 3 of the Partition Act, 1893?

¶153

b. Whether the petitioners have made out a case to set aside the auction on the ground that they were not afforded an opportunity to participate in the auction?

¶154

18. The contention raised was, respondent failed to deposit 25% of the bid amount as on the date of auction as they failed to deposit the same, the auction is vitiated. In that case, they relied on the judgment rendered by the High Court of Andhra Pradesh in the case of Baratam Satyanarayana v. Baratam Kantharao and others , wherein a view was taken that in case of Sale under Sections 3 and 4 of the Partition Act, 1983, the sale of shares of other shareholders in favour of shareholder applying for purchase is governed by self contained procedure under Section 3 and 4 only such 'necessary or proper directions' as the Court may grant

¶155

21 -

¶156

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶157

HC-KAR

¶158

and not by the procedure in Section 7, which is directory in nature and the Court is vested with discretion to extend time for depositing the amount towards sale of shares of other shareholders without reference to provisions of Order 21 Rule 84 of CPC. Even in the case of K. VIVEKANANDAN v. N. VIJAYAKUMAR , the same view was taken. The Court has also considered another judgment of High Court of Delhi in the case of KRISHAN KUMAR MEHRA V. ROOP LALL MEHRA AND OTHERS, wherein it is held that there is no strict application of the provisions of CPC as the Legislature was conscious of the fact that in partition suits, an auction could also involve one of the cosharers or decree holders purchasing the suit property. The strict applicability of the provisions of Order 21 of CPC can thus be relaxed by the Court while exercising its discretion. Learned Judge on necessary scope on Sections 2 and 3 of the Act and in observation with the legislature has used the word 'Shareholder', which otherwise means and connotes a person, who has a share in a property. The sale of joint property under Sections 2 and 3 of the Act of 1893 is different from a property sold in a public auction as per the provisions of CPC, where a condition for deposit and resale in case of default are provided. When auction is conducted among co-sharers i.e., within the family members, the requisite deposit of 25% and thereafter the balance amount to be deposited within a period of 15 days cannot be made applicable insofar as in case of an auction conducted under the provisions of Partition Act. The Court observed that the provisions of Order XXI Rules 84 and 85 of CPC will apply when there is a public sale of the property. Where property is sold under the provisions of the Partition Act, Rules cannot be applied and the Court can extend the time for payment of deposit in exercise of its inherent powers and the Court has also observed that the auction provision under Order XXII are held to be applicable to the auction conducted under the

¶159

22 -

¶160

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶161

HC-KAR

¶162

provisions and the Section 3 of the Act of 1893 and they are to be deemed as directory and not mandatory.

¶163

19. Learned counsel for respondent relied on another judgment in the case of H.S. GOUTHAM V. RAMA MURTHY AND ANOTHER , wherein paragraph No.34 reads as under:

¶164

34. At this stage, it is required to be noted that as per the relevant provisions of the Code of Civil Procedure, more particularly, Order 21 Rule 92 read with order 21 Rule 94, once the sale is confirmed and the sale certificate has been issued in favour of the purchaser, the same shall become final.

¶165

20. He has drawn the attention of this Court in the judgment of ANNAPURNA v. MALLIKARJUN AND ANOTHER , wherein the apex Court has observed

¶166

"Although Order 21 Rule 89 CPC does not prescribe any period either for making the application or the required deposit, Article 127 of the Limitation Act now prescribes 60 days as the period within which such an application should be made. In absence of any separate period prescribed for making the deposit, the time to make the deposit and that for making the application would be the same. The deposit of the requisite amount in the court is a condition precedent or a sine qua non to application for setting aside the execution of sale and such an

¶167

23 -

¶168

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶169

HC-KAR

¶170

amount must be deposited within the prescribed time for making the application otherwise the application must be dismissed".

¶171

21. Learned counsel for respondent submits that sale certificate that was issued in favour of the purchaser i.e. sisters, in the year 2012, registered on 15.06.2012 was never questioned and now it is not open for them to come up with such a relief, therefore prays for dismissal of the petition.

¶172

22. Heard learned Senior counsel for petitioner and learned counsel for respondents and perused the material on record.

¶173

23. Before dealing with the impugned order, it is appropriate to look at the applications that are filed. The petitioner herein, who is one of the co-sharers, who is a brother, sought for a relief to permit him to retain his share in the property and direct the auction purchasers to withdraw the money deposited by them, other relief that is sought is to stay further proceedings in the Εx.No.2371/2012 pending disposal of the case in FDP.No.88/2016. Then on what basis the petitioner wanted to retain his share in the property and to direct the auction purchasers to withdraw the money deposited by him without claiming share is in the first 1 to 3 paragraphs, he has narrated about the events. In paragraph No.4, he has stated that auction purchasers are the shareholders and interested parties in the suit schedule properties and taking advantage of the situation and misunderstandings prevailing amongst them, the decree holders did not deposit the sale consideration amount on time and it was not allotted and delivered to the petitioner. There is an inordinate delay and no benefit could be derived to the decree holder even

¶174

24 -

¶175

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶176

HC-KAR

¶177

after depositing of the value of the schedule property before the Court on a later stage. If the physical possession of the property is taken it will be put to untold hardship and it will not meet the ends of justice.

¶178

24. In this entire affidavit, he has not stated about anything with regard to any of the chronology of events that had taken place subsequent to compromise decree passed in RFA. He has not even taken any plea with regard to the auction being vitiated and all those grounds. Now by way of a petition, before this Court, he has filed an application under Order VI Rule 17 of CPC, wherein he is seeking permission to plead all these grounds before this Court by way of I.A.No.1/2018. This Court is exercising supervisory jurisdiction under Article 227 of Constitution of India. Now, while exercising the supervisory jurisdiction, the pleadings, which are supposed to be taken before the Court and pleadings basing on which, the order is already passed, what has to be adjudicated by this Court is only with regard to the legality or otherwise of the said order. This Court cannot permit the party to amend the pleading by way of an application under order VI Rule 17 of CPC that is filed before this Court is beyond the scope of Article 227 of Constitution of India. This Court cannot entertain such an application. Accordingly, I.A.No.1/2018 is dismissed.

¶179

25. Coming to the merits of the matter, when the sale certificate was issued on 11.11.2011 and it was registered on 15.06.2012, when the petitioner being a party in all the proceedings, he has never chosen to question the sale deed and those proceedings have attained finality. The submission made before this Court is Order XXI Rule 84 is not followed, though no application is filed to set aside the sale certificate or question the proceedings. But still this Court is empowered under Article 227 to

¶180

25 -

¶181

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶182

HC-KAR

¶183

go into all these issues. Such an argument advanced by the learned Senior counsel also has no legs to stand. The power confined on this Court under Article 227 cannot be exercised in such a manner.

¶184

Secondly, Petitioner is a party to the compromise decree, he is a signatory to the sald, compromise memo filed before the Court wherein all parties have agreed to put the 'B' Schedule property for auction. In that case, unless and until, the compromise decree is set aside, it is not open for the parties to a compromise decree to come up before the Court and file an L.A, which stands contrary to the judgment and decree passed by this Court in RFA. On this ground alone the writ petition has to be dismissed as such a relief that is sought by the petitioner cannot be granted by the Court as it runs contrary to the compromise decree in view of the memo filed by the parties in the RFA. On that ground itself 1.A.No.1/2016 needs to be dismissed and staying of FDP proceedings also do not stand in the light of first prayer, which cannot be entertained.

¶185

26. Then both the parties have relied on the procedure that has to be followed under the Partition Act, under Section 2 and 3 and they relied on two conflicting judgments of this Court where in first case, relied on by the petitioner, the learned judge has taken a view, whether araising out of the partition suit or it otherwise procedure under Order XXI Rule 84 has to be followed. wherein the judgment relied by the respondents in that case, the learned Judge of this Court has taken a view that when the auction takes place in a Partition suit, Section 2 and 3 of the Partition Act, will apply in that case, a strict time line under Order XXI Rule 84 need not to be followed and the Court has the power to enlarge the time. This Court is not inclined to

¶186

26 -

¶187

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶188

HC-KAR

¶189

go into any of the aspects. The only relief that is sought in the IA or is to stay of the final decree proceedings and to permit the petitioner to retain the property and the amount which was deposited in auction has to be given back to the auction purchaser. Such application the petitioner cannot file, in the light of compromise decree. When he can not maintain the relief that is sought in the IA’s this court need not go in to other issues.

¶190

27. In that view of the matter, this court finds no reasons to interfere with the well considered order passed by the Executing Court. Accordingly the writ petition stands dismissed .

¶191

All IA's in the writ petition shall stand closed. "

¶192

8. As can be seen from the aforesaid order passed by this Court

¶193

in the earlier round of litigation, this Court has taken note of the fact that the petitioner was a party to the compromise decree and that the auction sale had been conducted as long back as in the year 2011 and also that the grounds urged in the said petition as regards non-compliance with the provisions of Order XXI Rules 84 and 85 of CPC were not available to the petitioner. Further, the claim of the petitioner to assail the auction sale and for permission to retain the family property for himself by setting aside the auction sale has been clearly and categorically negatived by this Court. Under these circumstances, I am of the considered opinion that the

¶194

27 -

¶195

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶196

HC-KAR

¶197

trial Court was fully justified in rejecting the application- I.A.No. 5 filed by the petitioner and the impugned order does not warrant interference by this Court in the present petition.

¶198

A perusal of the impugned order will indicate that the trial Court has come to the conclusion that the petitioner, who was a party to the proceedings and the auction sale having been conducted in the year 2011 and the sale certificate was issued on 11.11.2011 and the same was registered as long back as on 15.06.2012, which was subsequently estopped from filing the present belated application with the sole intention of protracting and delaying the proceedings . While arriving at the said conclusion, the trial Court held as under:

¶199

" ORDERS ON IA NO.5

¶200

The respondent No.3 has filed the IA No.5 under Section 151 of CPC and prays to recall the order dated 11.11.2011 & order for fresh pubic auction of the schedule B property.

¶201

2. The application is supported in an affidavit sworn to by 3^rd Respondent by name Krishnamurthy.B.

¶202

3. On the other hand the legal representative of petitioner No.5 has filed his objections and prays to reject the IA No.5 with exemplary costs.

¶203

28 -

¶204

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶205

HC-KAR

¶206

4. Heard and perused the materials placed on record.

¶207

5. The following points arise for my

¶208

consideration;

¶209

1. Whether the IA No.5 filed by the respondent No.3 under Section 151 of CPC is deserved to be allowed?

¶210

2. What order?

¶211

6. My answers to the above points are as follows;

¶212

1. POINT No.1 : In the negative

¶213

2. POINT No.2 : As per final order,

¶214

for the following;

¶215

REASONS

¶216

7. POINT NO.1 :- The learned Advocate for respondent No.3 contended that the parties are full blood brothers and sisters & at the instance of sisters suit for partition was filed in OS No.5590/1996 with respect to 'A' 'B' & 'C' schedule properties. After contest the suit was decreed allottee 1/10^th share in 'A' & 'B' schedule properties and suit with respect to 'C' schedule property was dismissed. The said judgment was challenged by preferring RFA No.2411/2006 before the Hon'ble High Court of Karnataka. In the said proceedings, there was a compromise petition filed to the effect that 'A' & 'B' schedule properties were to be subjected to Public Auction and sale proceeds to be realized in the proportion to the share as per judgment

¶217

29 -

¶218

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶219

HC-KAR

¶220

and decree in OS No.5590/1996. The auction proceedings were completed with respect to 'A' schedule property. So far as 'B' schedule property was concerned, the same was ended up being subject matter of FDP proceedings before this Court. In the present proceedings 'B' schedule property was subjected to public Auction. In the public auction, the petitioners were the successful bidders and agreed sale price was Rs.1,17,00,000/-. As per the terms of the bid, 25% of bid/auction amount was required to be deposited by the petitioners within 24 hours and the balance amount was to be paid within 15 days from the date of bid. Even though specific conditions were enumerated in the CPC the petitioners failed to do so consequently making the entire process of public auction not in accordance with law. The petitioners however deposited Rs.66 Lakhs which is equivalent to the extent of six shares after two months. Out of the said amount, the share of respondent NO.3 is still lying before this Court and has not been disbursed in favour of respondent No.3. The process of public auction was not competed even though sale certificate too was issued in favour of the Padmakodandaram. There were serious objections raised by the Padmakondandaram for realization of the sale price proportionate to the share of respondent No.3, on the pretext that handing over of possession presupposes realization of sale price. This prompted the entire process of public auction becoming defunct, irrational and leading to tremendous prejudice and hardship to respondent No.3. The respondent No.3

¶221

30 -

¶222

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶223

HC-KAR

¶224

filed an application under Section U/s 151 of CPC to retain his proportionate share of land in 'B' schedule property which was dismissed by this Court and the respondent No.3 has preferred WP No.5366953670/2017 wherein the Hon'ble High Court of Karnataka has stayed the proceedings of this Court. However, the Hon'ble High Court passed judgment on 22.07.2024 which has now been challenged by respondent No.3 before the Hon'ble Supreme Court of India which is pending for adjudication. As the entire process of the public auction was not strictly complied with the conditions & stipulations enumerated under law and also for the reason that the entire process of public auction has prejudiced the rights of respondent No.3, it is become inevitable for respondent No.3 to approach the Court for fresh public auction with respect to 'B' schedule property. Now the real estate value has increase din mane fold and the respondent No.3 has unable to realize any benefit of the same, since the amount is still lying with this Court and he could not derive any benefits which he is entitled to as a share holder of the 'B' schedule property. If the 'B' schedule property is subjected to fresh public auction all the parties to the proceedings shall be benefited. There will be not prejudice or hardship or inconvenience that will be caused to any party and all the family members are at liberty to participate in the fresh public auction if they are interested to retain the 'B' schedule property. If 'B' schedule property is not re-auctioned the

¶225

31 -

¶226

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶227

HC-KAR

¶228

respondent No.3 will be put to hardship and hence prays to allow the application.

¶229

8. The learned Advocate for legal representative of petitioner No.5 contended that the application filed by the respondent No.3 is not maintainable either under law or on facts and the same is liable to be dismissed in lemine. The respondent No.3 has filed this application to recall the order dt.11.11.2011 for setting aside the sale of the 'B' schedule property in the public auction. The application is totally misconceived. The said application is filed only to delay the proceedings with malafide intention. The respondent No.3 filed similar application under Section U/s 151 of CPC in the above case in a different form to retain his alleged share by setting aside the said sale by way of public auction. (IA No.1/2016) and the same was dismissed by this Court by its order dated 10.10.2017. The said order was challenged before the Hon'ble High Court of Karnataka by respondent No.3 by filing WP No.53669/2017 which was dismissed on merits. Therefore, the matter cannot be re-agitated before this Court which is barred by principles of res-judicate. The sale certificate was issued on 11.11.2011 and it was registered on 15.06.2012. The respondent No.3 is a party to the same and he has not questioned the auction sale in any manner being actively participated in the auction. The respondent NO.3 is estopped from questioning the auction sale in any manner. AS the sale is confirmed the same cannot be set aside because the auction purchase will become absolute owner of the property.

¶230

32 -

¶231

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶232

HC-KAR

¶233

Hence, among all other grounds prays to dismiss the application.

¶234

9. It is pertinent to note that the petitioner has filed similar application to set aside the said sale by way of public auction earlier and it is not in dispute that the said application was dismissed by this Court on 10.10.2017. It is significant to note that the sale of joint family property under partition act is quite different from the property sold in public auction between the public at large. Further the sale certificate was issued on 11.11.2011 and when the property is registered on 15.06.2012 now at belated stage the respondent No.3 cannot seek for cancellation of public auction. Moreover, on the order dated 10.10.2017 the present respondent No.3 has preferred WP before the Hon'ble High Court of Karnataka vide WP No.53669/2017 and the Hon'ble High Court of Karnataka by its order dt.22.07.2024 has dismissed the WP filed by the present respondent No.3. Hence, the present application filed by the respondent NO.3 is not maintainable. Accordingly, I answer Point No.1 in the negative."

¶235

10. POINT No.4 :- In view of my findings on point No.1 in the negative, I proceed to pass the following;

¶236

ORDER

¶237

I.A. No.5 filed by the respondent No.3 under

¶238

Section 151 of CPC is here by dismissed."

¶239

33 -

¶240

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶241

HC-KAR

¶242

As rightly held by the trial Court, the petitioner who has been filing application after application, attempting to protract the proceedings was not entitled to any relief and the application was rejected by the trial Court on this ground also and the impugned order does not warrant interference in the present petition.

¶243

A perusal of the material on record will indicate that pursuant to the impugned order, the final decree proceedings have been closed and the respondents have taken possession of Schedule 'B' property on 20.02.2026, which is yet another circumstances that would come in the way of the petitioner re-agitating his claim that too after a lapse of more than 14 years.

¶244

In view of the aforesaid facts and circumstances and upon reconsideration, re-appreciation, re-evaluation of the entire material on record, I am of the considered opinion that the impugned order passed by the trial Court cannot be said to suffer from any illegality or infirmity, nor can the same be said to be capricious or perverse nor occasioned failure of justice, warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in

¶245

34 -

¶246

NC: 2026:KHC:10822 WP No. 34919 of 2025

¶247

HC-KAR

¶248

the case of (i) Radhey Shyam & others Vs. Chhabi Nath & Others - (2015) 5 SCC 423 (ii) K.P.Natarajan & Others Vs. Muthalammal & Others - AIR 2021 SC 3443 (iii) Mohammed Ali Vs. Jaya - (2022) 10 SCC 477 .

¶249

Insofar as the judgments relied upon by the learned counsel for the petitioner, the principles laid down in the said judgments would not be applicable to the factual matrix involved in the present case, especially in the context of the conduct of the petitioner, who has been repeatedly attempting to scuttle/ thwart the proceedings by filing repeated applications and as such, no reliance can be placed on the said judgments by the petitioner in support of his claim.

¶250

Accordingly, I do not find any merit in the petition and the same is hereby dismissed .

¶251

SD/(S.R.KRISHNA KUMAR) JUDGE

¶252

VMB

¶253

List No.: 1 Sl No.: 23

B. Krishnamurthy v. Sri. L. M. Kodandarama Shetty

Case brief

What is this about?

B. Krishnamurthy v. Sri. L. M. Kodandarama Shetty

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Achalananda Vs Sri Ravi Ankineedu Prasad Rao

Smt. Revathi M S Vs Sri B N Raghavendra

S R Nataraj Vs Sri v Seetharamaiah Shetty

Mr. Mukkaram Jan Vs Sri. K Rama

M S Yogesh Vs Prakash M S

C R Nagaraj Setty Vs Indian Oil Corporation Ltd.