CHEROTTY Vs. CHARU

JUDGEMENT

(1.) In the partition suit filed by the petitioner herein, a preliminary decree was passed declaring 1/4 share to the plaintiff, 1/4 share each to defendants 2 and 3 and 1/4 share to defendants 3 to 7 together. On the application of the plaintiff, final decree was passed on 29/08/1989.

(2.) EP No. 2 of 1999 was filed by the petitioner for delivery of the property allotted to him. Delivery was effected and the Execution Petition was closed on 04/10/1999. As per the final decree, the petitioner was also held entitled to realise a sum of Rs.10,487.50 as the value of the trees cut by the second defendant. EP No. 149 of 2000 was filed by the petitioner for realisation of the amount from the second defendant. The executing Court passed an order to sell the property allotted to the second defendant, which was made a charge for realisation of the amount due to the plaintiff. Sale was scheduled to be held on 25/09/2002. The petitioner had obtained leave of the Court under R.72 of O.21 of the Code of Civil Procedure to bid at the auction. On 25/09/2002, auction did not take place for want of bidders. When the Execution Petition was taken up on 28/09/2002, the Court below passed the following order.

(3.) I am of the view that the Court below was not justified in dismissing the Execution Petition on the ground that the petitioner / decree holder did not participate in the auction. In the Execution Petition filed by the petitioner, his prayer was to realise the amount by sale of the property. When an Execution Petition is filed, it is the duty of the executing Court to execute the decree. It was not incumbent on the decree holder to apply for leave to bid. Even if no such leave was sought for, the Court was bound to proceed with the execution and to realise the amount by sale of the property. Leave granted to the petitioner to bid at the auction only enables him to participate in the auction. It does not cast an obligation on him to bid at the auction. He may choose to bid or abstain from bidding. The Court cannot compel the decree holder, who has obtained leave under O.21 R.72 of the Code of Civil Procedure, to bid at the auction. The option rests with the person who has obtained leave and the Court cannot compel him to be present at the auction and to offer his bid. Dismissal of the Execution Petition on the ground that the decree holder did not participate in the auction was illegal.