GOPAL PRASAD Vs. JAGANNATH PRASAD

JUDGEMENT

(1.) HEARD the learned Counsel for the petitioner. The petitioner is said to be one of the co -parceners in a suit for partition and the suit for partition having culminated in Final Decree Proceedings, the property was sought to be purchased by the present petitioner and an application was made in terms of Section 3 of the Partition Act, 1893 (Hereinafter referred to as the '1893 Act', for brevity). The same has been rejected in the background that the respondent herein, who was the plaintiff, had, it appears, filed an application in the first instance, seeking a similar relief of offering to buy the property and that application having been allowed, that was challenged by the present petitioner before a single judge of this court in a writ petition in WP 41146/2013, wherein this court had directed the court below to proceed with the Final Decree Proceedings with liberty to the parties to make applications under Section 2 of the 1893 Act. It is thereafter that the present petitioner has filed the second application. The learned Counsel for the petitioner draws attention to a decision of a division bench of this court in the case of Rukmani and Others vs. V. Uday Kumar and others, : 2007(4) KCCR 2566, wherein the division bench has relied upon a decision of the apex court in R. Ramamurthi Aiyar vs. Rajeswararao, : AIR 1973 SC 643 and has culled out the principles laid down therein, as follows :

(2.) GOING by the said decision whereby the general procedure prescribed under the Code of Civil Procedure, 1908, in respect of a court sale ought to be followed, the property was subjected to a public auction. Similarly, in the present case on hand, the executing court is said to have held a public auction where the highest bidder has quoted a bid amount of Rs. 48, 00, 000/ - whereas the present petitioner has offered a highest amount of Rs. 18, 00, 000/ - to purchase the said property. In that view of the matter, notwithstanding that Sub section (2) of Section 3 of the 1893 Act, provides that when there are two or more shareholders, ready to purchase the property, the section lays down that the property could be sold to the highest bidder amongst those shareholders, but however, a different procedure having been followed by the executing court in line with the decision of the division bench aforesaid and a ready and willing purchaser having been found, who is offering a substantial amount of Rs. 48, 00, 000/ - in the place of Rs. 18, 00, 000/ -, which is the highest amount offered by the petitioner, it would be in the interest of justice and in the interest of the parties that the property be sold in terms of the bid made at the public auction. There is no substance in the writ petition. The petition stands dismissed.