M L MUBARAK BASHA Vs. MUNI NAIDU

JUDGEMENT

(1.) Leave granted.

(2.) Heard the learned counsel for the parties.

(3.) This appeal by special leave arises from the Division Bench judgment of the Madras High Court made in LPA No. 205/1995 on August 28, 1995. The appellant had filed a suit, viz., O.S. No. 69/1976 in the Court of Subordinate Judge, Thiruvanamalai for partition and separate possession of his 16/64 share in the plaint schedule property. A preliminary decree passed for partition was confirmed. Before the final decree was passed, the property at Item No. 18 of the plaint schedule, namely, Saw Mill, was initially brought to sale between the parties, as per the directions of the Court; subsequently, there was public auction thereof. In the public auction, the second respondent came to purchase the property for a sum of Rs. 1,03,600/-. An application had been filed by the appellant under Section 47 of C.P.C. for setting aside sale. Though several grounds had been raised, none of them was pressed. But one ground canvassed before the High Court and pressed for consideration before us is that the Commissioner had no power to fix the upset price in conducting the sale. Since this point was raised for the first time before the High Court, the Division Bench has rejected the same and confirmed the sale though it was upset by the learned single Judge. Thus, this appeal by special leave.