IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 OP(C).NO. 423 OF 2010(O) ------------------------------------ OS.13/2000 OF MUNSIFF COURT, ALATHUR .................... PETITIONER; -------------------- SULAIMAN, S/O. LATE MEERANKUTTY, AGED 70 YEARS, RESIDING AT NEAR A S M M, H S SCHOOL, ALATHUR, PALAKKAD DIST. BY ADV. SRI.JOHNSON P.JOHN SRI.BABY MATHEW RESPONDENT(S): ------------------------ ABDUL KHADER, S/O. ABBAS, RESIDING AT HOUSE NO.15/125, PALLIPARAMBIL, ALATHUR.P.O., ALATHUR, PALAKKAD. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.423 of 2010 ==================================== Dated this the 22nd day of October, 2010 J U D G M E N T Defendant No.2 in O.S. No.13 of 2000 of the court of learned Munsiff, Alathur is the petitioner. He is aggrieved by refusal to set aside the sale by public auction as requested for in Ext.P2, application. There is a final decree for partition of the suit property - described in the plaint schedule as 8 cents and on measurement with the help of Village Officer, found to be 7.73 cents in Alathur town. Advocate Commissioner who was appointed to make a division of the property by metes and bounds reported that considering the small extent of property such a division is not feasible and that the property should be sold among the sharers. But none was willing to take the property in sale among the sharers. There was also no application by any of the sharers under Section 3 of the Partition Act (for short, “the Act”) to purchase rest of the shares. In that situation the court was left with no option but to direct auction by public sale under Sec.2 of the Act. Advocate Commissioner was directed to submit report. Advocate commissioner submitted a second interim report stating about the O.P(C) No.423 of 2010 -: 2 :- modality for the sale in public auction, manner of publication, time, place and fixing upset price at Rs.14,26,000/-. Notice of interim report was given to all parties including petitioner. But none opposed the interim report on any ground whatsoever. Nor was there any suggestion by parties as to the manner of publication, conduct of the sale or the upset price for the property suggested by the Advocate Commissioner. Thereon the second interim report was accepted and sale by public auction was ordered. Court accepted the draft sale conditions proposed by the Advocate Commissioner on 26.11.2009 and with notice to all the sharers date for sale in public auction was fixed as 09.12.2009 at 1.00 p.m. Accordingly sale was conducted and the highest bidder knocked the bid for Rs.28,00,000/-. The Advocate Commissioner submitted a report to that effect. It is thereon that petitioner filed Ext.P2, application to set aside the sale. That application was dismissed. It is contended by learned counsel for petitioner that even if it is assumed that Order XXI of the Code of Civil Procedure (for short, “the Code”) is not applicable to a sale under Sec.2 of the Act, principle contained in Rule 68 of Order XXI of the Code should have been applied and that there should have been proper publication of the proposed sale through O.P(C) No.423 of 2010 -: 3 :- newspapers which was not done. It is also contended that time gap given for sale was only 15 days which was not sufficient to attract sufficient number of bidders. Learned Munsiff found that grounds set up to set aside the sale are unsustainable and that attempt is only to protract proceeding and accordingly Ext.P2, application was dismissed. Learned counsel contends that the order is not correct. It is also the contention that property is situated in a very important part of Alathur town which would fetch more than Rs.28,00,000/- lakhs and that the bid amount is low. These aspects ought to have taken into account by the learned Munsiff. 2. I have given an anxious consideration of the contentions advanced by learned counsel. But I am unable to accept his arguments. Reasons are: Though extent of property was stated in the plaint and decree schedule as 8 cents it is revealed from the interim report submitted by the Advocate Commissioner that actual extent is only 7.73 cents. In that report Advocate Commissioner also has suggested modalities for sale in public auction, time, the place, manner of publication of sale and conduct of sale. The upset price was also suggested as Rs.14,26,000/-. Notice of that report was given to all the sharers O.P(C) No.423 of 2010 -: 4 :- including petitioner but none objected on any ground whatsoever. It is accordingly that on 26.11.2009 court directed that the sale will be held on 09.12.2009 at 1.00 p.m. It is also revealed from the order of the learned Munsiff that the proposed sale notice was published on the court notice board, Village Office, Taluk Office, Sub Registrar’s Office and office of the Bar Association, not to say about the notice of the same given to all the parties to the suit. It is revealed that there were 43 bidders at the time of auction sale and the highest bid was for Rs.28,00,000/- lakhs which is almost double the upset price suggested by the Advocate Commissioner. 3. Apart from contending that the bid amount is low and that there was no sufficient bidders on account of lack of publication of sale through newspapers, petitioner did not adduce any evidence, oral or documentary. He did not even mount the witness box to speak about his case. He rest contended by merely filing a petition and wanted the learned Munsiff to set aside the sale. It is not as if a sale could be set aside for the mere asking. There must be sufficient materials on record. True, there was no publication through newspapers but I must bear in mind that there were 43 persons vying to purchase the property O.P(C) No.423 of 2010 -: 5 :- in auction and that is how though upset price was suggested as Rs.14,26,000/- the property could be sold for Rs.28,00,000/-. I do not find any material or reason to interfere with the order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv