GULAB SINGH THAKUR Vs. GEETESHRI CHANDRAPAL SINGH THAKUR

JUDGEMENT

(1.) THE applicants take exception to the order passed by the learned 2nd Joint Civil Judge, Senior Division, Nagpur, on Exhibit 122 in miscellaneous Judicial Case No. 173 of 1974, arising out of execution of decree in Partition Suit No. 945 of 1968 filed by heirs of Bachhusingh, who died intestate on 24-11-1964. The suit property comprises of a house situated in Sadar at Nagpur. The following genealogical tree will make the relationship of parties clear. <IMG>judgement_809_mhlj5_2006.JP2.jpg</IMG>

(2.) THE suit for partition filed by one of the heirs of Bachhusingh came to be compromised on 30-7-1969, whereby the heirs had agreed to sell the suit property and share the sale proceeds. In terms of the compromise, the parties were to arrange to sell the property in six months; failing which, the Court was to appoint a Receiver to sell the same. The parties had specifically waived final decree proceedings. Since the parties could not sell the property, one shivbalisingh filed Miscellaneous Judicial Case No. 173 of 1974 for appointment of a Receiver in terms of the compromise decree. Accordingly, necessary steps were taken and the property was put to auction, in which it had fetched a price of rs. 1,27,000/ -. The trial Court, by order dated 30-4-1982, confirmed the sale. One of the parties aggrieved, who had offered to purchase the property at rs. 1,27,000/- and whose application dated 28-4-1982 was held by the trial Court to be lacking in bona fides, filed Civil Revision Application No. 383 of 1982 before this Court on the grounds, amongst others, as to whether the sale by advertisement in daily newspaper could be said to be sale by public auction. This court held in the decision rendered in the said case reported in 1987 Mh. LJ. 301, that the sale had to be carried out by public auction alone and, therefore, the sale by inviting offers through a public advertisement was a nullity. The sale was, therefore, set aside and the trial Court was directed to conduct sale by public auction by appointing a new Commissioner.

(3.) ACCORDINGLY, the property was put to sale by auction on 15-4-1989. However, the auction did not actually take place. On 26-11-1991, the parties before the trial Court filed application Exhibit 60 giving a no objection for sale to gulabsingh for a sum of Rs. 2,40,000/ -. This no objection was signed by all the heirs except Chandrapalsingh. Chandrapalsingh filed a similar no objection vide exhibit 159. S. B. Singh, who had filed the Miscellaneous Judicial Case, also agreed to the sale on 17-12-1991 vide Exhibit 61. Thereupon, by order dated 30-4-1992, the learned trial Judge directed Gulabsingh to deposit the amount by 16-6-1992, which time was extended up to 1-7-1992.