Saheb Khan vs Mohd. Yousufuddin & Ors

The appellant had purchased certain property in a Court sale. The High Court has set aside the sale. The decision of the High Court has been impugned in this appeal. The disputed property was the subject matter of a suit for partition between the respondents or their predecessors-in- interest. The property was not partible. The Trial Court accordingly directed sale of the suit property. An Advocate Commissioner was appointed to sell the suit property. The order directing sale required the Advocate Commissioner "to sell the suit property in auction between the parties to the suit or in public auction, if the parties are not coming forward after following the due procedure like giving wide publicity". The Advocate Commissioner issued notice to the parties to the suit through their respective advocates on 25th June, 2002. The notice said that the warrant of commission would be executed by the sale of the property on 30th June, 2002 by auction and that the parties were at liberty to participate in the auction if they desired to. The Commissioner also pasted notices on the wall of the suit property and distributed pamphlets advertising the sale in the locality. On 30th June, 2002, four of the parties were present and, according to the report of the Commissioner about "20-30 general public offers were made as against the fixed upset price of Rs. 10 lakhs". The highest bid was given by the appellant of Rs. 12 lakhs. He deposited three lakhs being 1/4th of the bid amount. A report was submitted to Court by the Advocate Commissioner enclosing inter alia a copy of the minutes of the proceedings held by the Commissioner signed by the parties as well as a list of the bidders and their names and addresses.

On 12th August, 2002, the respondent No.1, herein (who was the defendant No.4 in the suit) filed an application under Order XXI Rule 90 read with Section 151 of the Code of Civil Procedure praying that the auction should be set aside and that the sale should be made in favour of one Azhar Quyum Sidhique for 18 lakhs. The application was accompanied by an affidavit affirmed by the said Sidhique in which he said that he was ready to purchase the suit premises and would deposit Rs. one lakh within two days and pay the balance "within any period at the time of registration". Although by this time, the appellant had deposited the offered price of Rs. 12 lakhs, the District Judge gave an opportunity to the respondent No.1 to bring the said Sidhique to court to deposit the sum of Rs.18 lakhs. The respondent No.1, however failed to produce the alleged purchaser. Three such opportunities were given by the District Judge. On all three occasions, the said Sidhique did not present himself in Court.

Impugning the decision of the District Judge, the respondent No.1 preferred an appeal before the High Court. The High Court set aside the sale holding that no notice was given to the respondent No.1 to purchase the property in terms of Sections 2 and 3 of the Partition Act, 1893 before selling the property by public auction. It was also held that it was unclear whether notice was served on the respondent No.1 as the signatures on the notice were not legible. In any event, the Court was of the view that the provisions of Order XXI Rules 66 and 67 of the Code of Civil Procedure had been violated by not giving adequate publicity to the sale. It was also noted that the respondent No.1 had brought to the notice of the Court the offer of the said Sidhique for Rs. 18 lakhs. The High Court said that there was no valid or legal reason for not accepting or acting upon the offer so brought forward by the respondent No.1. In the circumstances, the appeal was allowed and the sale was set aside.

In the circumstances, the High Court erred in setting aside the sale in favour of the appellant. The decision of the High Court is unsustainable both in fact and in law. It is accordingly set aside and the appeal is allowed with costs.