SURESH KUMAR BHANDARI Vs. RAMESH KUMAR BHANDARI

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order dated 04-10-2001 made in C.M.A.No. 235/2001 on the file of the learned II Additional Chief Judge, City Civil Court, Hyderabad.

(2.) The 2nd respondent herein is the appellant in C.M.A.No. 235/2001. The petitioner herein is the defendant in O.S. No. 3799/1989 on the file of the V Junior Civil Judge, City Civil Court, Hyderabad. The 1st respondent herein is the plaintiff in the said suit. The 2nd respondent is the auction purchaser of the suit schedule property. The petitioner herein filed I.A. No. 369/2001 to set aside the sale conducted on 08-12-1999 in the name of the 2nd respondent and the said LA. was allowed by setting aside the sale conducted on 8-12-1999 by order dated 10-07-2001 on the ground of inadequacy of price fetched due to irregularities and fraud in conducting the sale by the learned V Junior Civil Judge, Hyderabad. Aggrieved by the same, the auction purchaser - 2nd respondent herein filed CM.A. NO. 235/2001 and the learned II Additional Chief Judge allowed the same and dismissed I.A.No. 369/2001. Against the said order, the defendant in the suit filed this Civil Revision Petition.

(3.) Brief facts of the case are as follows: The 1st respondent and the petitioner herein are the brothers. The 1st respondent filed O.S.No. 3799/1989 for partition of his half share in the suit schedule property bearing No. 15-7-318 and 15-7-319 situated at Begum Bazar, Hyderabad was decreed. The 1st respondent filed I.A.No. 652/1988 for passing a final decree. In the said application an Advocate Commissioner was appointed to sell the suit schedule property. The Advocate Commissioner issued sale proclamation and the first publication was made on 10-12-1998, 2nd publication was made on 08-07-1999, the 3rd publication was made on 02-09-1999 and the 4th publication was made on 25-10-1999. The auction was conducted by the Advocate Commissioner on 08-12-1999 wherein the 2nd respondent herein was declared as the highest bidder. Prior to 08-12-1999, the auction was conducted on 10-ll-1999,pursuant to the sale proclamation and paper publication dated 25-10-1999. Four bidders participated by depositing Earnest Money Deposit amount of Rs. 1,00,000.00 each and one Mr. Bhagwan Attal was declared as the highest bidder and his bid was Rs.6,00,000/- but he has not deposited the l/4th of the amount as per the auction notice and therefore, as the highest bidder failed to produce the demand draft for l/4th amount within the given time, the bid was cancelled and adjourned to future date for public auction on 08-12-1999. The signature of the petitioner herein and his counsel and also the signature of the 1st respondent herein was also obtained in the said proceedings. Thus, the plaintiff and the defendant i.e., the petitioner and the 1st respondent were aware about the adjournment of the auction proceedings for conducting the auction in respect of the sale of the said house. However, the Advocate Commissioner issued notice dated 26-11-1999 to the counsel for the petitioner and the respondent duly fixing the date of auction on 08-12-1999 at 11-00 a.m. Accordingly, the auction was conducted. In the auction that was conducted five bidders participated including the petitioner and the 1st respondent, the 1st respondent deposited a sum of Rs. 1,00,000.00 as a condition precedent to participate in the auction but the petitioner herein requested time to deposit a sum of Rs. 1,00,000.00 and three others also deposited Rs. 1,00,000.00 each, the auction was conducted in the presence of the petitioner and the 1st respondent and the other 3 bidders. Final bid of one of the bidders Mr. Srinarayana Das was Rs. 10,06,000/- and the final bid on behalf of Smt. Nani Devi was Rs. 10,25,000.00. It is recorded in the auction proceedings by the Advocate Commissioner that Smt. Nani Devi represented by the 1st respondent herein and she is the highest bidder in the public auction conducted on 08-12-1999 at the sale price of Rs. 10,25,000.00 and the highest bidder was directed to produce the pay order by way of banker cheque of Rs. 2,60,000/- in favour of the VII Junior Civil Judge, Hyderabad towards l/4th amount of the bid value and to deposit the balance 3/4th amount into court on or before 16-12-1999. The Earnest Money Deposit amount deposited by all the bidders was returned. It is stated that Smt. Nanidevi represented by the 1st respondent/plaintiff received EMD on her behalf and somebody signed as Smt. Nani Devi. It is further recorded by the Advocate Commissioner that the 1st respondent (plaintiff) and his wife representing Smt Nani Devi - the highest bidder produced account payee pay order No. 125202 dated 08-12-1999 of the State Bank of Hyderabad for Rs. 2,60,000.00 towards l/4th amount of the bid value of Rs. 10,25,000/- and the said proceedings were signed by the 1st respondent and the petitioner herein left the premises after the public auction was over. The proceedings dated 13-12-1999 of the Advocate Commissioner discloses that the 1st respondent and his wife came with two other gentlemen along with Smt. Nani Devi, her husband (Sri Ram Vallabh Bhati) and Smt. Nani Devi aged about 44 years, occ: Household R/o. 3-5-145/E16, King Koti, Hyderabad and she affixed her LTI on the said proceedings on 13-12-1999 in the presence of the 1st respondent and two others. It is further stated that earlier signature against the name of Smt. Nani Devi was that of Smt. Saroja, advocate practising in Maharashtra who is sister-in- law of the 1st respondent herein.