THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL REVISION PETITION No.3535 of 2010 ORDER: The petitioner is defendant No.5 in O.S.No.439 of 2001 in the Court of the XIII Additional Chief Judge, City Civil Court, Hyderabad. Respondent No.1 filed the suit for partition and separate possession of the suit schedule properties against respondent Nos.2 and 7 and the petitioner. A preliminary decree was passed on 15.04.2004. C.C.C.A.No.268 of 2004 is pending before this Court against the same. It is stated that all the properties in ‘A’ schedule and item No.1 in ‘C’ schedule were permitted to be sold firstly among the parties and that the sale proceeds be distributed according to the shares determined in the preliminary decree. It is in this context that respondent No.1 filed I.A.No.461 of 2004 for final decree. After taking note of the orders passed by this Court in various revisions, the trial Court directed that the items referred to above be put to public auction on 17.08.2010. The petitioner filed I.A.No.73 of 2010 under Order 13 Rule 9 C.P.C. with a prayer to set aside the decree, dated 15.04.2004. According to her, she was set ex parte, without even verifying as to whether summons in the suit were served. She filed this revision challenging the order, dated 02.07.2010 passed by the trial Court in I.A.No.461 of 2004 on the ground that the said order was passed even while I.A.No.73 of 2010 is pending. Heard Sri E.Madan Mohan Rao, learned counsel for the petitioner and Sri M.A.Mukeed, learned counsel for respondent No.1. This is one of the rare cases where certain items of properties in a suit for partition are being sold on a permission accorded by this Court in an appeal filed against the preliminary decree. The record, no doubt, shows that the petitioner was set ex parte. The petitioner states that she is residing for the past 25 years in Canada and at no point of time, summons were served upon her. She claims the ground floor in ‘A’ schedule property under a gift deed said to have been made in her favour by her father. The property comprises of three floors with appurtenant land. For one reason or the other, the auction of the property did not take place for the past several years. Initially, the bid was confined to the parties to the suit and the highest bidder did not deposit the bid amount. Naturally, that led to the conducting of public auction. It is no doubt true that normally, the further proceedings would not take place when an application under Order 13 Rule 9 C.P.C. is pending. This, however, is a case where the petitioner happens to be one of the defendants and the preliminary decree was passed after severe contest. Further, an appeal is pending before this Court. The auction is being conducted in pursuance of the order passed by this Court. The interest of the petitioner can be protected by directing that a substantial portion of the amount that is fetched in the auction be not withdrawn. Hence, the civil revision petition is dismissed, however, by directing that the trial Court shall not permit withdrawal of one-third of the bid amount and shall permit two-third to be withdrawn in accordance with the shares determined in the preliminary decree. It is also directed that the sale shall be subject to the outcome of the further proceedings. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:13.08.2010 kdl