IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 CRP.No. 107 of 2009 AS.59/2006 OF PRINCIPAL SUB COURT, KOCHI-5 OS.250/1996 OF ADDL.MUNSIFF'S COURT, KOCHI REVN. PETITIONER: APPELLANT: PETITIONER: --------------------- ANTONY , S/O. JOSEPH, AGED 52 YEARS, VATTAMAKKAL HOUSE, A.K. XAVIER ROAD, RAMESWARAM VILLAGE, KOCHI TALUK. BY SENIOR ADVOCATE SRI.N.N.SUGUNAPALAN SRI.MAHESH V RAMAKRISHNAN RESPONDENTS: RESPONDENTS: RESPONDENTS: --------------- 1. JOSEPH, S/O. JOSEPH, AGED 60 YEARS, VATTAMAKKAL HOUSE, RAMESWARAM VILLAGE, KOCHI TALUK. 2. ANNAMMA JOSEPH, W/O.LATE JOSEPH, VETTAMAKKAL HOUSE, NEAR DON BOSCO ORATOR, VADUTHALA, COCHIN 682 023. 3. RAPHY JOSEPH, S/O. LATE JOSEPH, RESIDING AT DO...DO.... 4. MARY MALA, D/O.LATE JOSEPH & W/O. CHRISTOPHER SAMION, KALATHIL VEETTIL HOUSE, OCHANTHURUTHU. 5. EASHWARY MOL, D/O. LATE JOSEPH, VATTAMAKKAL HOUSE, VADUTHALA, COCHIN -23. 6. RAJAKUMARI, D/O. LATE JOSEPH, AGED 25, REPRESENTED BY MOTHER AND NATURAL GUARDIAN ANNAMMA JOSEPH. 7. JACOB, S/O. JOSEPH, VATTAMAKKAL HOUSE, A.K. XAVIER ROAD, RAMESWARAM VILLAGE, COCHIN TALUK. 8. ALEXANDER, S/O. JOSEPH, VATTAMAKKAL HOUSE, A.K. XAVIER ROAD, RAMESWARAM VILLAGE, COCHIN TALUK. 9. SELIN, S/O. XAVIER ROAD, RAMESWARAM VILLAGE, COCHIN TALUK, 10. BENEDICT, S/O. XAVIER VATTAMAKKAL HOUSE, A.K. XAVIER ROAD, REMESWARAM VILLAGE, COCHIN TALUK. 11. JAYAMMA, W/O. SAMSON KURUPPASSERRY AND D/O. LATE XAVIER, KURUPPASSERY HOUSE, KUMBALANGHI, KOCHI -7. 12. CICILY, W/O. JOSEPH, AND D/O. LATE JOSEPH, VATTAMAKKAL, RESIDING AT ATTIPETTI HOUSE, OCHANTHURUTH, VYPEEN. 13. JOANOFARE @ MAJO, W/O. K.J. WILLIAM & D/O. LATE JOSEPH, VATTAMAKKAL HOUSE, RESIDING AT KALIYATH HOUSE, MUNDAMVELI, KOCHI TALUK. 14. NIXON, S/O. JACOB, VATTAMAKKAL HOUSE, A.K. XAVIER ROAD, PARIPPU JUNCTION, KOCHI 682 005. 15. NIXY, W/O. SAJAN & D/O JACOB, RESIDING PRESENTLY AT VATTAMAKKAL HOUSE, A.K. XAVIER ROAD, PARIPPU JUNCTION, KOCHI 682 005. 16. EBRAHIM, S/O. K.A. MOHAMMED, C.C. NO. 14/1858, CHULLICKAL, RAMESWARAM VILLAGE. R16 BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.G.PRAMOD SRI.K.PUSHPAKUMAR SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.KANDAMPULLY RAHUL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/5/2010, THE COURT ON 21/06/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 107 OF 2009 ------------------------------------------------------ Dated this the 21st day of June, 2010 O R D E R The question involved in this Civil Revision Petition is whether the provisions of Order XXI of the Code of Civil Procedure would apply to a sale of immovable property under the Partition Act, 1893. 2. In O.S.No.250 of 1996, Sub Court, Kochi, filed by the predecessor in interest of respondents 2 to 6, a preliminary decree for partition was passed on 11.1.2000. The plaintiff was held entitled to get 1/7 share. The preliminary decree was modified in appeal, holding that the 1/7 share of the plaintiff in the plaint schedule property includes share in the building as well. Respondents 1 to 6 filed an application for passing the final decree. In the final decree application, it was made clear that if division in specie was not possible, the property could be sold and the proceeds divided. 3. A Commissioner was appointed, who reported that it was not possible to divide the property by metes and bounds giving shares to all the sharers. On the request made by the parties, sale of the property by C.R.P. NO.107 OF 2009 :: 2 :: public auction was ordered as per the order dated 16.10.2003. The property consists of three cents of land and a residential building. Auction was held on 29.3.2005. Respondent No.16 offered the highest amount of Rs.17.5 lakhs. She deposited the sale price. The case was posted for confirmation of sale on 17.5.2005. At that time, the revision petitioner, who is the third defendant in the suit, filed an application under Rule 90 of Order XXI read with Section 151 of the Code of Civil Procedure to set aside the sale. The trial court dismissed the application and it was confirmed in appeal. The revision petitioner challenges the concurrent decisions of the courts below. 4. The petitioner contended that no notice was issued to him under Rule 66 of Order XXI of the Code of Civil Procedure. The final decree court directed to issue a proclamation sale. Therefore, the petitioner contends that all the provisions in the Code of Civil Procedure relating to execution sale would be applicable to the proceedings in relation to the sale. The revision petitioner contended that even if Rule 90 of Order XXI is not applicable, Section 47 of the Code of Civil Procedure would be applicable. 5. The contesting respondents, including the plaintiffs, contended that in the final decree proceedings, the petitioner did not appear in spite of receipt of notice. Even though proclamation was issued, it was not C.R.P. NO.107 OF 2009 :: 3 :: necessary to issue separate notice to the petitioner. The petitioner was present when the Commissioner inspected the property. None of the parties including the petitioner filed objection to the Commissioner's report. After affording an opportunity of being heard to the parties, the court below passed the order dated 16.10.2003 for sale. Draft sale proclamation was issued and the parties were given opportunity to file objections. Opportunity was afforded for hearing. Publication was made in the newspaper regarding the sale. No objection was raised by any of the parties. The proclamation was duly published. The respondents also contended that the petitioner did not make any offer to purchase the property for a higher amount at any point of time. The attempt of the petitioner is to protract the litigation. 6. Both the courts below found that there was no material irregularity in publishing and conducting the sale. The oral and documentary evidence in the case were considered by the courts below in arriving at the conclusion. It was held by the courts below that the value fetched in the auction sale was just and reasonable. That none of the parties was willing to take the property for a higher value was also taken note of by the courts below. 7. The respondents in the Revision raised a contention that the appeal filed by the petitioner before the court below had abated due to C.R.P. NO.107 OF 2009 :: 4 :: non-impleadment of the legal representatives of the deceased eighth respondent in the appeal. Though an application for impleading the legal representatives was filed by the petitioner, he did not take the necessary steps and that application was dismissed. The respondents contended that the appeal before the court below having abated, the petitioner is not entitled to maintain the Revision. 8. Partition Act, 1893 (Act 4 of 1893) is an the Act to amend the law relating to partition. Section 2 provides that whenever it appears to the Court that by reason of the nature of the property or of the number of share holders or of any other special circumstance, a division of the property cannot reasonably or conveniently be made and that a sale of the property and distribution of the proceeds would be more beneficial for all the share holders, the court may direct sale of the property and distribution of the proceeds. Section 2 indicates that the power of sale can be resorted to if a request is made by "any such share holders interested individually or collectively to the extent of one moiety or upwards". A sale under Section 2 of the Act is a public sale. Section 3 provides for the procedure when a share holder applies for leave to buy after the request is made under Section 2 to direct a sale. Even when no application is made by the parties under Section 2 of the Act, if the Court comes to the conclusion that a reasonable and equitable method should be adopted for dividing the property among the sharers, the court may C.R.P. NO.107 OF 2009 :: 5 :: device such other feasible mode for effecting partition as may appear to be just and equitable. A sale among the sharers can be ordered by the court so that third parties will not outbid the sharers and acquire the property. An auction in a closed circle, namely, among the sharers, may appear to the Court to be the most ideal solution in certain cases. One or more sharers may be able to acquire the property by offering higher amount. If a public sale is ordered, such an opportunity may some times be not available to the sharers. In the facts and circumstances of each case, the court may have to deal with varied situations and different and distinct problems. The Partition Act does not create a bar to the Court in adopting any reasonable and equitable method for division of the property. The Scheme of the Partition Act provides for a sale under Section 2 and the request of any of the share holders under Section 3 to buy out the shares of other sharers after an application for sale under Section 2 is made. Even when an application under Section 2 is made, that does not ipso facto curtail the powers of the Court to deal with the situation and to pass appropriate orders for a just and equitable division of the property or its proceeds, including an auction among the sharers. 9. In Badri Narain v. Nil Ratan (AIR 1978 SC 845), the Supreme Court held that the request for sale envisaged by Section 2 must be one for public sale. If no such request was made to the Court, Section 3 cannot be brought into operation. The Supreme Court also took the view C.R.P. NO.107 OF 2009 :: 6 :: that a prayer made in the plaint alternatively to permit the plaintiff to purchase out the defendant's share does not amount to an application under Section 2 of the Partition Act and, therefore, Section 3 is not applicable. In that fact situation, it was held by the Supreme Court thus: “19. Thus considered, it is clear that the provisions of Ss.2 and 3 of the Partition Act are not applicable to the peculiar circumstances of the case. At the same time, there is a concurrent finding of fact recorded by the courts below that the suit property is so small, that it cannot be conveniently and reasonably partitioned by metes and bounds, without destroying its intrinsic worth. This finding is unassailable. In our opinion in such a situation, the Court can devise such other feasible mode for effecting partition as may appear to it to be just and equitable in the circumstances of the case.” 10. In Anthony Ammal v. Antony (1983 KLT 645), the scope and ambit of Section 2 and 3 of the Partition Act was considered and it was held thus: “As per Section 2 of the Partition Act 1893, a sale of the properties involved in a partition suit and distribution of the sale proceeds among the sharers can be made only on the request of a shareholder individually interested or of shareholders collectively interested in one moiety or upwards of the properties involved. But, it cannot be said that the Court has no power to direct the sale of the property involved in a suit for partition and the distribution of the sale proceeds among the sharers even if the above condition insisted by S.2 of the Partition Act is not satisfied. What the court has to see is that there is a just partition. In all cases where the property, or properties, is incapable of partition by metes and bounds, the Court is not without powers to resort to a feasible method just and equitable in the circumstances of the case. The Partition Act does not take away this power the Court has. In this case, even though the application for final decree has been made by the 5th defendant- respondent, who has only less than a moiety, it cannot be C.R.P. NO.107 OF 2009 :: 7 :: said that the Court was in the wrong in accepting the report of the Commissioner to sell the property by auction among the sharers." 11. The request for sale, in the alternative, made in the final decree application, was duly taken note of by the Court, taking into account the views of the other shareholders as well and it was thought that it would be ideal to sell the property in public auction. No other sharer applied under Section 3 of the Partition Act. Though strictly speaking, the person who applied for sale does not represent one moiety of the shareholders or upwards as provided in Section 2 of the Partition Act, the Court has power to order sale of the property in public auction and division of the proceeds among the share holders, if the court finds that such a course would be more beneficial to the sharers and that it is just and equitable to do so. An order for sale in public auction, as made by the court below in the case on hand, is a feasible method for division of the property beneficial to the interest of all the shareholders. For such a sale, the Court can prescribe the method for sale taking into account Rule 234 of the Civil Rules of Practice. Sub rule (1) of Rule 234 provides that when it is ordered in a partition suit that any property may be sold and proceeds divided, the persons other than the co-owners shall not be permitted to bid in the sale, unless it appears to the Court that it is just and expedient to order otherwise. In the case on hand, the court below thought, and the shareholders agreed, that sale in public auction was C.R.P. NO.107 OF 2009 :: 8 :: expedient. Sub Rule 5 of Rule 234 contains the procedure for public sale, which reads as follows: “(5) Where the Court considers that the interests of the parties will be better served by ordering a sale, open for the bid of the general public, the Court may appoint an auctioner and shall fix his remuneration for the purpose, and may give the necessary directions relating to the place, time and manner of publication and conduct of the sale and shall direct any of the parties to deposit in Court any sum required for the publication and conduct of the sale. Properties or assets sold by the Court in the course of a Partition suit shall be delivered over to the purchaser with the documents of title. The Court may also direct the co-sharers or the Receiver to execute a deed of conveyance to the purchaser at his cost and may, if necessary, appoint a Receiver for the purpose.” 12. Section 7 of the Partition Act, 1893 provides the procedure to be followed in the case of sale. Section 7 reads as follows: “7. Procedure to be followed in case of sales: Save as hereinbefore provided, when any property is directed to be sold under this act, the following procedure shall, as far as practicable, be adopted, namely:- (a) if the property be sold under a decree or order of the High Court of Calcutta, Madras or Bombay, in the exercise of its original jurisdiction, the procedure of such court in its original civil jurisdiction for the sale of property by the Registrar; (b) if the property be sold under a decree or order of any other court, such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made the procedure prescribed in the code of Civil Procedure in respect of sales in execution of decrees.” C.R.P. NO.107 OF 2009 :: 9 :: 13. In Unnimadhavan v. Rugmini Pallikkaramma (1980 KLT 892), a question arose whether in a public auction sale in a partition suit the provisions of Order XXI of the Code of Civil Procedure would apply. The question was whether time for deposit of the purchase price could be extended. The trial court rejected the prayer for extension of time taking the view that the matter was governed by Rule 85 of Order XXI of the Code of Civil Procedure. That order was challenged in Revision. Allowing the Revision, it was held that the sale provided for in Rule 234 of the Civil Rules of Practice is a sale to be made before passing of the final decree. Order XXI of the Code of Civil Procedure is concerned with the execution of decrees or orders. The sale having been held not in execution of a decree but before the passing of the final decree for partition, it was held that Order XXI Rule 85 was not applicable and Rule 234 of the Civil Rules of Practice was applicable. In that view of the matter it was held that the court had jurisdiction to extend the time for deposit. In Unnimadhavan's case, it was held: “7. What then will be the position if the provisions of the Partition Act are attracted? Counsel submits that there are no decisions directly covering the point. S.7 lays down that the procedure to be adopted for a sale under the Act shall be: “such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil C.R.P. NO.107 OF 2009 :: 10 :: Procedure in respect of sales in execution of decrees”. The Section itself recognises the distinction between sales under the Act, and sales in execution of decrees; the procedure in respect of the latter is to be adopted, “as far as practicable”, till such time as the High Court prescribes rules for such sales. Rule 234 of the Civil Rules of Practice can be considered as a rule framed by the High Court within the meaning of the first part of clause (b) of S.7 of the Partition Act; it is a rule framed by virtue of all powers thereunto enabling”. If this is so, the Rules in Order 21 of the Code for sales in execution of decrees are not applicable to sales made in pursuance of an order of court under the Partition Act; what applies will again be the prescriptions of the Rules of Practice.” 14. The sale in the present case, as indicated earlier, is not strictly a sale under Section 2 of the Partition Act. A public sale dehorse the Partition Act is not prohibited under any law. The sharers who appeared before Court wanted a public sale. In such a case, as held in Unnimadhavan's case, the provisions of Rule 234 of the Civil Rules of Practice would apply. The provisions of Order 21 of the Code of Civil Procedure as such would not apply in such cases. 15. Order XXI of the Code of Civil Procedure applies to execution of decrees and orders. An order for sale in the final decree proceedings in a suit for partition is not an order in execution. Going by Section 7(b) of the Partition Act, the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees would apply only in the absence of the procedure as the High Court may prescribe by Rules. C.R.P. NO.107 OF 2009 :: 11 :: When such Rules are prescribed, the provisions of Order XXI of the Code of Civil Procedure cannot be imported to the sales under the Partition Act. If so, the application made by the petitioner under Rule 90 of Order XXI of the Code of Civil Procedure was not maintainable. 16. Learned counsel for the petitioner contended that the trial court issued a proclamation for sale under Rule 66 of Order XXI and, therefore, it was a clear deviation from Rule 234 of the Civil Rules of Practice and it was an adoption of the procedure as provided in Order XXI of the Code of Civil Procedure. In such cases, the counsel contends, that the rest of the provisions of Order XXI also should automatically apply. It is true that a proclamation for sale was issued. The proclamation for sale is intended to make known to the public that a particular item of property is proposed to be sold. The necessary details which an intending purchaser is expected to know would be incorporated in the proclamation of sale. Such proclamation of sale is mandatory in an execution sale. As per Rule 234 (5) of the Civil Rules of Practice, the court may give necessary directions relating to the place, time and the manner of publication and conduct of the sale. The expression "manner of publication and conduct of the sale" occurring in Sub-rule (5) of Rule 234 takes in a proclamation of sale as well, though not as provided in Rule 66 of Order XXI of the Code of Civil Procedure. Though the Rule was wrongly quoted, the proclamation does not cease to be a proclamation as issued as per the C.R.P. NO.107 OF 2009 :: 12 :: directions of the Court under Rule 234(5) of the Civil Rules of Practice. The provisions of Order XXI of the Code of Civil Procedure, which otherwise would not apply at all to a sale held under Rule 234(5) of the Civil Rules of Practice, cannot be made applicable even if in the proclamation it is wrongly mentioned as one issued under Rule 66 of Order XXI of the Code of Civil Procedure. Such an error would not make the sale held in a final decree proceeding for partition, a sale in execution of a decree or order. Therefore, I reject the contention of the petitioner that an application for setting aside the sale would be maintainable under Rule 90 of Order XXI of the Code of Civil Procedure. 17. A question would arise whether a sale held in public auction or among the sharers, in a final decree proceedings, could be set aside. If so, what is the procedure to be followed? On what grounds a sale could be set aside? I am of the view that the Court has power to set aside such a sale, if sufficient grounds are made out to show that the sale was vitiated by vitiating circumstances like fraud, collusion etc. Simply because the provisions of Order XXI of the Code of Civil Procedure as such would not apply to a sale held under Rule 234 of the Civil Rules of Practice and that there is no provision in the Civil Rules of Practice to set aside a sale held under an order under Rule 234, it cannot be said that the Court is powerless to set aside such a sale. The principles underlying Rule 90 of Order XXI of the Code of Civil Procedure could very well be C.R.P. NO.107 OF 2009 :: 13 :: taken into account by the Court and a sale could be set aside in appropriate cases. The inherent power of the Court, as saved in Section 151 of the Code of Civil Procedure, can also be invoked by the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court. In the facts and circumstances of the case, as held by the courts below, the petitioner has not made out any sufficient ground to set aside the sale. 18. The eighth respondent in the appeal filed by the petitioner before the court below, died during the pendency of the appeal. Though the petitioner herein filed an application for impleading the legal representatives of the deceased, he did not take the necessary steps and the court below dismissed the application for impleading. Consequently, the appeal before the court below had really abated. The court below should have dismissed the appeal as abated. In fact, the court below held that there was abatement. The courts below considered the merits of the case in great detail and it was held that the petitioner herein was not entitled to succeed in the appeal. I am of the view that the appeal before the court below had abated and, therefore, the Civil Revision Petition itself is not maintainable. However, since the court below