ANTONY Vs. JOSEPH

JUDGEMENT

(1.) The question involved in this Civil Revision Petition is whether the provisions of Order XXI of the Code of Civil Procedure would apply to a sale of immovable property under the Partition Act, 1893.

(2.) In O.S. No. 250 of 1996, Sub Court, Kochi, filed by the predecessor in interest of Respondents 2 to 6, a preliminary decree for partition was passed on 11.1.2000. The Plaintiff was held entitled to get 1/7 share. The preliminary decree was modified in appeal, holding that the 1/7 share of the Plaintiff in the plaint schedule property includes share in the building as well. Respondents 1 to 6 filed an application for passing the final decree. In the final decree application, it was made clear that if division in specie was not possible, the property could be sold and the proceeds divided.

(3.) A Commissioner was appointed, who reported that it was not possible to divide the property by metes and bounds giving shares to all the sharers. On the request made by the parties, sale of the property by public auction was ordered as per the order dated 16.10.2003. The property consists of three cents of land and a residential building. Auction was held on 29.3.2005. Respondent No. 16 offered the highest amount of Rs. 17.5 lakhs. She deposited the sale price. The case was posted for confirmation of sale on 17.5.2005. At that time, the revision Petitioner, who is the third Defendant in the suit, filed an application under Rule 90 of Order XXI read with Section 151 of the Code of Civil Procedure to set aside the sale. The trial court dismissed the application and it was confirmed in appeal. The revision Petitioner challenges the concurrent decisions of the courts below.