SHIVRAJ KRISHAN GUPTA Vs. CHANDER KRISHAN GUPTA

JUDGEMENT

(1.) ORDER impugned before this Court is the order dated 27.02.2012 vide which the application filed by the petitioner under Section XLVII of the Code of Civil Procedure (hereinafter referred to as the 'Code') seeking a review of the order dated 24.11.2011 had been dismissed. On 24.11.2011, the averments made by the petitioner that the reserve price of the suit premises (property No. 38-A, Amrita Shergill Marg) (which had been fixed by the Court on 26.03.2008 in the sum of Rs.1.40 crores) in view of the intervening long period of time and property prices having escalated in this period requiring a revision in the reserve price had been declined.

(2.) RECORD shows that a preliminary decree of partition qua the aforenoted suit property had been passed on 08.08.1980; 25% of the share in the suit property devolved upon the present petitioner; this was a dispute inter-se four branches of the same family. On 08.04.2002, a single Judge of the High Court had ordered the sale of the aforenoted property against which an appeal was filed by the present petitioner and dismissed on 22.07.2005. In 2006, this suit which was pending in the High Court, because of change of the pecuniary jurisdiction was transferred to the District Court. In the proceedings before the District Court, the present petitioner filed an application seeking permission of the Court to relinquish his rights in the other family properties in case the share in those properties could be adjusted in the present suit property; this application was dismissed on 02.12.2006. On 24.08.2007, another application was filed by the petitioner seeking permission of the Court to convert this property from lease-hold into free-hold which was dismissed on 25.10.2007. This order was the subject matter of a petition under Article 227 of the Constitution of India which was dismissed by this Court on 30.11.2007. Thereafter the parties were granted opportunity to file the documents for the purpose of evaluation of the reserve price of the property; during the course of these proceedings, an SLP was preferred by the petitioner praying for a stay of the auction; this SLP was dismissed on 21.01.2008. Further submission of the petitioner that no auction can be conducted on a preliminary decree was dismissed by the trial Court on 26.03.2008 on which date the reserve prices of Rs.1.40 crores had been fixed by the trial Court. Attention has been drawn to the aforenoted order; contention of the petitioner is that even on 26.03.2008, a judicial notice had been taken of the prices in the vicinity and although the submission of the present petitioner was that the suit property is valued at more than Rs.150-160 crores, the counter submission of the non-applicant was that a reserve price should be fixed between Rs.110-120/- crores; the Court had taken judicial notice and fixed the reserve prices at Rs.1.40 crores. Advanced submission on this count being that as on date, this Court can also take judicial notice of the escalation in property prices from 26.03.2008 (which was the date when reserve price of Rs.1.40/- was fixed) and after taking judicial notice of the aforenoted price-rise, a reserve price should be re-fixed.

(3.) THE SLP preferred against the order of the High Court dated 16.10.2008 was dismissed on 11.08.2001. THE question of law posed before the Apex Court (as is evident from the grounds contained therein) were again on the terms and conditions of the contract of auction and sale; contention of the petitioner being that this order of the High Court and Apex Court although has become final, yet it relates to the modalities of sale which had been fixed vide order dated 14.08.2008 and it is in no manner related to the reserve price which had been fixed by an earlier order of 26.03.2008. In fact the entire crux of the arguments of the learned counsel for the petitioner is based on this submission.