RATHNAMMA Vs. A V SHARADAMMA

JUDGEMENT

(1.) THIS revision petition is directed against the judgment and Order of the IX Additional City civil Judge, Bangalore dated 27th July, 1996, rejecting the petitioners' application for setting aside the sale which prime facie appears, application was given the title to be under Order 21, rule 90 read with Section 151, Civil Procedure Code. It appears, the Counsel had also forgotten to mention Section 47 of the Civil Procedure Code, but the objections that were taken, as can be said to be one covered by Section 47, Civil Procedure code.

(2.) THE facts of the case in brief are that: A suit for partition was filed bearing No. O. S. 9706 of 1980, by the plaintiff-respondent 1 and for separate possession of joint-family property, the suit came to be decreed-allctting respective shares to each of the parties. Thereafter, an application was filed for drawing up of the final decree and the case was taken up for drawing a final decree, in accordance with the preliminary decree. At that stage, the present revision petitioners, that is defendants 1 and 2 moved an application before the Court to the effect that the suit property is not divisible, because of its smallness and suggested for selling of the property among the heirs, if not feasible to sell it in public auction and to distribute the sale proceeds among the heirs. As appears from the judgment, that the Court appointed a Commissioner to conduct the sale of the suit property and suit property appears to have been auctioned and sold for a sum of Rs. 2,15,500/- and the Commissioner submitted his report to the Court below on 19-6-1991. It may be mentioned here that the Commissioner had conducted the sale on 5th May, 1991.

(3.) WHEN the Commissioner's report was submitted on 19-6-1991, the case was posted for objections on Commissioner's report and sale was confirmed on 27-6-1991. The certificate was issued to the Auction Purchaser on 9-7-1991. It may be mentioned here that the petitioners had filed a revision in Civil Revision Petition No. 3567 of 1991 on 26-7-1991 with the prayer for setting aside the sale and this Court by its judgment dated 28th of November, 1994, dismissed the revision taking the view that remedy available to the parties was under Order 21, Rule 90, civil Procedure Code reserving that liberty to the applicants to move an application under that order subject to law of limitation. Thereafter the revision petitioners filed the application under Order 21, Rule 90 read with section 151, Civil Procedure Code for setting aside the sale on the ground of irregularity committed during the sale.