SHANT KUMAR Vs. ZHERABI

JUDGEMENT

(1.) 1. This appeal is directed against the order dated 23-10-1982 in final decree proceedings arising out of O.S.No. 104 of 1964. The present appellants were impleaded in the final decree proceedings as defendants 5 to 7, inter alia, on the ground that they were purchasers, pendente lite, of some of the immovable properties situate in Raichur Town, while the plaintiffs suit for partition was pending disposal in the Court of the Civil Judge at Yadgir in Gulbarga District.

(2.) We may make a passing reference that the suit was filed by one Zeharabi, since deceased by her legal representatives, against one Gulam Mahaboob and two others, some of whom also died and are represented by their respective legal representatives since.

(3.) The suit was originally filed in the Court at Gulbarga in the year 1950. Later, on the establishment of the Court of the Civil Judge at Yadgir, the suit was transferred there and was renumbered as O.S.No. 104 of 1964. That a preliminary decree came to be passed in favour of the plaintiff declaring her 1/8th share in the suit schedule properties which consist of several immovable house properties as well as agricultural lands situate in Raichur District, is not in dispute. After passing the preliminary decree, the Court proceeded to appoint a Commissioner to make a division of the properties by metes and bounds. It was at that time discovered that some of the properties had been sold to third parties and therefore identification of the properties as well as division of them by metes and bounds was practically impossible. It was in those circumstances, the Counsel appearing for the parties submitted to the Court that the Court may proceed to sell the properties in public auction and divide the sale proceeds amongst the various sharers in proportion to which they were entitled to under the preliminary decree. Then auction took place in which, as is apparent from paragraph-7 of the order under appeal, the parties to the proceedings i.e., the final decree proceedings, also participated and bid at the auction held after issuing sale proclamation and sale warrant.