IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 WP(C).No. 30133 of 2009(J) -------------------------- PETITIONER(S): --------------- 1. ABDUL HAMEED, S/O. MOHAMMEDKUTTY, MATTATHOOR AMSOM DESOM, MATTATHOOR P.O., TIRURANGADI TALUK, MALAPPURAM. 2. MOIDUTTY, S/O. MOHAMMEDKUTTY, MATTATHOOR AMSOM DESOM, MATTATHOOR P.O., TIRURANGADI TALUK, MALAPPURAM. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): --------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, MALAPPURAM. 2. TAHSILDAR, TIRURANGADI. 3. ABDUL KHASIM, OLAKARA HOUSE, VADAKKUMANNA, MATTATHUR, OTHUKKUNGAL. BY G.P.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J ---------------------------------------- WP(C) No.30133 OF 2009 ---------------------------------------- Dated this the 11th day of December, 2009 JUDGMENT Petitioners are co-sharers with respect to certain immovable properties, along with the third respondent, who is defaulter to the State Government with respect to payment of arrears of sales tax. It is stated that at the instances of the first petitioner a partition suit was filed in which a preliminary decree was passed by the Sub Court, Tirur, in O.S.119/2005 and that proceedings with respect to final decree is pending. It is further stated that Government is also a party in the preliminary decree, eventhough there is no specific share assigned with respect to the arrears or there is no stipulations regarding any method by which the arrears has to be mitigated. 2. The steps under Revenue Recovery Proceedings are on going and the share of the defaulter-third respondent in the property is now proclaimed for sale, as evidenced from Ext.P4 notice. Apprehension of the petitioners is that if pending disposal of the final decree proceedings, the undivided share of the third respondent is sold in auction, that will prejudice the entire proceedings of the partition. Therefore, the limited prayer is to keep in abeyance further steps of recovery till the final decree is passed and the partition by metes and bounds is effected. According to the petitioners, the respondents 1 and 2 can proceed against share of property which will be allotted to 2 the third respondent in the final decree proceedings for realisation of the amounts. 3. Learned Government Pleader on the other hand contended that total amount due is about 30.5 lakhs along with interest due thereon, and if ultimately the share which will be assigned favour of the third respondent is not sufficient enough to cover the liability, it will cause prejudice to the state exchequer . 4. It is noticed that as on the date on which the arrears were accrued, and as on the date when the recovery steps were initiated, the defaulter third respondent is holding an undivided share in the entire property. Therefore, such undivided share is liable to be proceeded against for realisation of the amounts in arrears. Hence, it may not be legally proper to restrain respondents 1 and 2 which in effect will limit their rights only against the divided share which may ultimately assigned to the third respondent, on finalisation of the partition. Therefore, I am not inclined to allow the prayer in the writ petition. 5. On the alternative, the petitioners claimed another relief to the extent of directing sale of undivided share of the defaulter among the co-owners. I do not find any difficulty in adopting such a course. Hence it is made clear that if any of the co-owners including the defaulter is ready and willing to offer the amount which is in arrears 3 along with the interest due thereon and expenses if any liable, the second respondent is directed either to drop the proceedings on receiving the amount due from the defaulter or to finalise sale in favour of any such bidder who effects payment of the amount as directed above. 6. It is made clear that public auction proposed need be attempted only if the co-owners are not willing to purchase the undivided share for the amount which is in arrears. The second respondent shall publish further sale on issuing specific notice to the petitioners as well as the third respondent and other co-owners and shall finalise the proceedings as per the directions mentioned above, as early as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. C.K.Abdul Rehim, Judge cms