MUNI NAIDU Vs. M L MUBARAK BASHA

JUDGEMENT

(1.) THIS appeal arises out of the order passed by the learned Sub Judge, Thiruvannamalai, dated 13.10.1986 allowing the application filed by the plaintiff - petitioner in I.A.No.525 of 1983 in O.S.No.69 of 1976 setting aside the sale held on 7.1.1983 and directing a fresh sale to be effected by the Commissioner appointed for the said purpose.

(2.) THE petitioner -s case is briefly as follows: In the suit filed by the plaintiff for partition and separate possession of his 16/64th share, a preliminary decree has been passed. The second defendant filed an application for passing a final decree. Advocate Thiru P.Sivaraman was appointed as Commissioner to divide the properties. As far as the 18th item of the properties is concerned, the Commissioner has stated in his report that it cannot be divided since it is a sawmill. The second defendant filed an application for selling the property in auction among the sharers and prayed for permission to bid at the auction. The said application was allowed. The second defendant was the highest bidder in respect of the said property for a sum of Rs.1,03,600. The property therefore should not have been brought for public sale subsequently. There was no proper publication of the sale either through tom -tom or publicity in papers. Therefore, the plaintiff -petitioner could not participate in the auction/The sixth respondent was the highest bidder for Rs.95,200. The sale was finalised in his favour. Since the Commissioner demanded a sum of Rs.5,000 as security from the bidders there were no sufficient bidders. When the property had already been sold for Rs.1,03,600 fixing the upset price as Rs.70,000 by the Commissioner is wrong. For all these drawbacks, the sale held on 7.1.1983 is liable to be set aside.

(3.) ON the above pleadings, the learned Sub Judge held an enquiry and has held that the petition is maintainable in the form it was filed, that there was proper publication by torn torn and publication in the papers, that notice was given to the parties to the suit through their counsels, that the description of the property was also specific and clear, that the allegation that the property was sold for a lesser price is not tenable and all these grounds have been decided against the petitioner. But the learned Sub Judge has further held that the auction -purchaser has not paid the necessary amount for writing the sale certificate in stamp papers within 15 days from the date of auction and it is against the provisions of O.21, Rule 85 of the Code of Civil Procedure and on that ground alone, the sale is liable to be set aside and allowed the application as prayed for.