MATHEW Vs. RAJAN

JUDGEMENT

(1.) The petitioner-defendant and the respondentplaintiff are brothers. The defendant challenges the auction conducted in court in a final decree proceedings in a suit for partition.

(2.) The subject matter of the litigation is 46 cents of land with a cinema theatre thereon which practically covers the whole extent. The petitioner and respondent had yet two other brothers. The business of the theatre was run jointly by all the brothers under a partnership. One of the brothers filed a suit as O.S No.1532 of 1992 before the Sub Court, Thrissur seeking dissolution of firm. Ultimately, in R.S.A. No. 754 of 2003 arising therefrom, the parties entered into a compromise whereunder the rights over the property became vested with the plaintiff and the defendant herein. It appears that thereafter the business continued. Later, the respondent herein as plaintiff filed the suit O.S 1351/2010 for partition of one half share over the property in question. On 21.02014 a preliminary decree for partition was passed directing that the property be divided into two equal shares and allotting one share each to the plaintiff and defendant. Challenging the decree the defendant filed RFA No.475 of 2014 before this Court. The same was dismissed as per judgment dated 20.01.2016. Challenging the same the defendant has filed SLP No. 12874 of 2016 before the Apex Court and the same is stated to be pending. In the meanwhile the plaintiff filed final decree application as FDIA No. 973 of 2014. An Advocate Commissioner was deputed in the final decree proceedings who reported that division of the property into two segments is not possible. As revealed from Ext P3 order dated 29.03.2016 of the learned Sub Court, Chavakkad, either parties agreed in court that in-specie division of the property is not possible and that the only course open is to conduct auction among the sharers. It is recorded in Ext P3 order that both sides submitted that they have no objection in conducting auction. Either of the parties did not invoke the provisions of the Partition Act. The trial court was convinced that physical partition is not possible. Accordingly the court below ordered auction among the sharers. The parties were directed to file an affidavit regarding the upset price to be fixed for conducting the auction. As revealed from Ext P6 order of the learned Sub Judge dated 19.10.2017 the plaintiff filed an affidavit showing the upset price at Rs. 4, 05, 00, 000/-. However, the defendant did not file any affidavit nor did suggest any upset price. The order reveals that the counsel for the defendant submitted that he is not filing any affidavit. Accordingly, as per Ext P6 order the court directed auction among the parties. As revealed from Ext P7 order dated 11.2017 the defendant or his counsel did not participate in the auction. The sale was conducted and was confirmed in favour of the plaintiff at the upset price fixed. Thereupon O.P No.3493 of 2017 is filed by the defendant challenging the auction. O.P No.1047 of 2016 was filed challenging Ext P3 order dated 29.03.2016 whereby the parties were directed to file affidavit proposing the upset price to be fixed for auction.

(3.) Apparently the defendant has not participated in the auction. There is no order of stay of the proceedings from the Apex Court. Though it appears that there had been willful abstinence by the defendant from the auction proceedings, considering the fact that he is the half sharer of the entire property and in order that the property may fetch the maximum value, it is only just that the petitioner-defendant also be given an opportunity to participate in the auction. Though grounds have been urged to the effect that dehors the provisions of the Partition Act, there could not be a direction for sale, the learned counsel did not venture to canvass that. In the decisions of Badri Narain Prasad Choudhary and Ors. V Nil Ratan Sarkar, (1978) AIR SC 845, Santhosh Kumar v Indira Mohandas, (2001) 3 KLT 389, Sathi Lakshmanan, (2008) 4 KLT 401, Antony v Joseph, (2010) 3 KLT 140 it has been held that even in cases where the provisions of the Partition Act is not applied, the court has inherent power to make an order for sale.