HASHAM ABBAS SAYYAD Vs. USMAN ABBAS SAYYAD

JUDGEMENT

(1.) Leave granted.

(2.) Appellant, Respondent No.1 and Respondent No.2 are brothers. A suit for partition was filed by Respondent No.1. A preliminary decree was passed on 16.03.1999. An application purported to be a Special Darkhast was filed by him on 29.11.1999. An Advocate Commissioner was appointed. He was of the opinion that the property was impartible. A proposal was mooted that the property be put on sale in between the co- sharers. Appellant accepted the Commissioner's report. He however filed an application for putting the said suit property on auction sale and for equal distribution of the proceeds thereof amongst the co-sharers. An objection to the report of the said Advocate Commissioner was filed by the appellant. The court allowed the appellant to appoint an architect at his own cost. He, however, failed to comply with the said order. A sale proclamation was issued. The appellant expressed his intention to buy the said property at the valuation made by the Government Valuer. A valuation report was filed by the appellant on 04.05.2005 against which Respondent No.1 filed an objection. The appellant was called upon to deposit 2/3rd of the amount stated in the valuation report. He failed to do so. On or about 21.11.2005, he filed an application expressing his willingness to deposit shares of Respondent Nos. 1 and 2. He also sought for permission to deposit an amount of Rs.2.5 lakhs. By an order dated 22.11.2005, the Trial Court held that since the property was put on auction sale, the highest bid would be treated to be the best price of the suit property and there was no need for appointment of any valuer to ascertain the market price thereof. Another objection was filed by the appellant stating that in view of the facts and circumstances of the case, he should be allowed to buy the shares of other so-sharers. The said application was rejected by an order dated 14.12.2005. By an order dated 15.04.2006, the learned Trial Judge held that it was not necessary to initiate a final decree proceeding and the said purported Special Darkhast filed by Respondent No.1 was treated to be an application therefor. A writ petition filed by the appellant was dismissed by the High Court by reason of the impugned order.

(3.) The short question which, inter alia, arises for consideration is as to whether the property in suit could be put on auction sale without initiating a formal final decree proceeding.