MARY DIAS Vs. PEDRO MACHADO

JUDGEMENT

(1.) Heard Shri Diniz, learned Counsel appearing for the Petitioners and Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents. The above Petition, inter alia, seeks for a writ of certiorari or any other writ direction under Article 226 and 227 of the Constitution of India to quash and set aside the impugned Order dated 27.09.2004, passed by the learned Ad-hoc Addl. District Judge, Panaji, in Misc. Civil Appeal No. 63/2002 along with the chart of partition.

(2.) Briefly, the facts of the case are that Inventory Proceedings were initiated upon the death of Paulo Bartholomeu Mendes, wherein the Petitioners were made interested parties in view of a Deed of Gift dated 23.07.1980 executed by one of the daughters of the said deceased in favour of the Petitioner No. 1 in respect of her share in the undivided estate of the deceased. In the course of such proceedings, an auction came to be held on 05.10.1999 which the Petitioners contend was without drawing any final list of assets. An objection to that effect was raised and by an Order dated 29.04.2002, the allotment was homologated. Being aggrieved by the said Homologation of the Partition, the Petitioners preferred an appeal before the learned District Judge, challenging the final chart of partition. The Appeal came to be dismissed on 27.09.2004 by the learned District Judge and, as such, the Petitioners have preferred the above Writ Petition.

(3.) Shri A.F. Diniz, learned Counsel appearing for the Petitioners, has assailed the impugned Judgment on following grounds. It is the contention of Shri Diniz, learned Counsel appearing for the Petitioners, that the auction was held by the learned Trial Judge without finalising the list of asset. Learned Counsel further pointed out that there was no description carried out by the learned Judge and, as such, there was grave injustice to the Petitioners. Learned Counsel further pointed out that the auction proceedings were conducted by the learned Judge on the basis of the list of assets submitted by the Cabeca de Casal and, according to him, the item numbers in the last list of assets do not correspondent with the items which have been auctioned by the interested parties. Learned Counsel has taken me through the list of assets and pointed out that grave injustice has resulted to the Petitioners. Learned Counsel further pointed out that the Respondents were being represented by a Power of Attorney and, according to him, there were no powers given to such Attorney to take part in the said auction. Learned Counsel further pointed out that as a bid was given to one of the items by the said Power of Attorney on behalf of the Respondents, the bid itself is not valid and, as such, the learned Judge has erroneously accepted the bid given by the said Power of Attorney. Learned Counsel further pointed out that this aspect was objected by the Respondents and by an Order dated 13.09.2000, the said objections raised by the Petitioners came to be rejected. The learned Counsel further pointed out that whilst filing the Appeal against the final Homologation of Partition, the petitioners have raised a ground to the effect that the said Power of Attorney was not authorized to bid at the said auction. Learned Counsel has taken me through the impugned Order passed by the Lower Appellate Court and pointed out that the learned Judge has failed to consider such aspect on the ground that the Petitioners had not challenged the said Order dated 13.09.2000 immediately after the said Order was passed. Learned Counsel further pointed out that the learned Judge was not justified to refuse to consider the said ground as, according to him, there is no bar for the Petitioners to challenge the findings in the said Order as a ground of Appeal whilst challenging the final Homologation of the Partition. Learned Counsel further pointed out that as the description was not done in terms of the provisions of the Portuguese Civil Procedure Code, the learned Trial Judge was not justified to hold an auction on the basis of a truncated list of asset. Learned Counsel further pointed out that there was mis-apprehension with regard to the property which was being auctioned and, as such, the learned Judge was not justified to pass the impugned Judgment and dismiss the Appeal filed by the Petitioners. Learned Counsel further pointed out that as the list of assets was not finalised nor any description was done in the said proceedings, and there was no compliance of Article 1319 of the Portuguese Civil Procedure Code and, as such, the whole auction proceedings came to be vitiated. Learned Counsel has also taken me through the impugned Order and pointed out that the learned Judge has erroneously considered the material on record and has dismissed the Appeal filed by the Petitioners on untenable grounds. Learned Counsel as such submits that the impugned Judgment deserves to be quashed and set aside.