GULABSINGH Vs. CHANDRAPAL SINGH

JUDGEMENT

(1.) The applicant, who is one of the co-owners in the suit house, has challenged the order of the learned trial Court dated 30-4-1982 by which the learned trial Court rejected the objection raised by the applicant for confirmation of the sale of the suit house in favour of the non-applicant No. 7 and has confirmed the said sale in his favour. Briefly, the facts are that the non-applicants 1 and 2 in this revision filed a suit for partition against the applicant and the non-applicants 3 to 6. The said suit was numbered as Civil Suit No. 945 of 1968. The parties to the said suit filed on application on 4-7-1969 for passing a consent decree in terms of the compromise arrived at between them. As per the compromise terms, it was agreed that each of the co-owners had 1/6th share in the suit house. However, since it was found that the said suit house was not capable of being partitioned into specific shares, it was agreed that it should be sold and the sale proceeds should be divided between the parties according to their respective shares. The sale was to be effected and the sale deed was to be executed in favour of the buyer within a period of six months, failing which the trial Court was to appoint a receiver to sell the property and to divide the sale proceeds between the parties. A decree in terms of the aforesaid compromise was passed by the trial Court on 4-7-1969 itself.

(2.) It appears that the sale of the suit house was not made by the parties within six months. Hence an application was filed by the non-applicant No. 5 in the instant revision for appointment of a receiver for sale of the property in suit which is Exh-1. The said application was filed on 13-6-1974 in Miscellaneous Judicial Case No. 173 of 1974. On 25-2-1982, the learned trial Court passed an order upon the aforesaid application appointing Shri M.I. Shareef of Advocate as a Commissioner to sell the suit property by public auction and to divide the sale proceeds amongst the parties as per their shares. According to the said order he was directed to submit his report by 31-3-1982. By the said order he was directed to take help of the Architect Shri Nimgade for assessing the market price of the suit property. A writ of commission was issued to the Commissioner on 6-3-1982 and the same was received by him on 11-3-1982. The Architect submitted his report to the Commissioner on 20-3-1982 where after on 25-3-1982 an advertisement was given by the Commissioner in the issue of the said date of the daily 'Nagpur Times' inviting written offers from the intending purchasers by 31-3-1982. The description of the suit house given in the said advertisement was as follows : "A double storeyed house bearing Corporation No. 123/0+1 in Sadar Extension Area, Nagpur, adjacent to Advocate Deopujari's house."

(3.) The Commissioner submitted to the trial Court his report on 31-3-1982 containing the offers received by him and the trial Court on the same date accepted the offer of Rs. 1,27,000/- made by the non-applicant No. 7 in the instant revision, which was the highest offer from amongst the offers received by the Commissioner. It may be stated at this stage that the Architect Shri Nimgade had estimated the market price of the suit house at Rs. 1,16,000/- and the after made by the non-applicant No. 7 was more than the said amount. By the same order dated 31-3-82 the learned trial Court directed the auction purchaser i.e. the non-applicant No. 7 to deposit 25 per cent of the price within 10 days and the balance within 15 days from the date of his order. The case was posted for confirmation of the sale on 30-4-1982. It is not in dispute that the auction purchaser deposited 25% of the amount on 3-4-1982 and the full amount on 13-4-1982.