B RAMAKRISHNA SETTY Vs. B SREENIVASA MURTHY

JUDGEMENT

(1.) 1. Aggrieved by the order directing them to pay poundage, revision petitioners preferred this revision.

(2.) First respondent filed the suit for partition and separate possession of his 8/42nd share in the plaint schedule properties. After contest a preliminary decree was passed on 08-07-1993. Inapetition filed by the first respondent for passing a final decree in terms of the preliminary decree the trial Court appointed a Commissioner. He filed a report informing the Court that it is not practicable to divide item Nos. 1 to 4 of plaint schedule, and so the trial Court, with the consent of the parties, held an auction in between the parties to the suit in respect of those items, in which the first respondent became the highest bidder in respect of items 1, 2 and 4 for Rs.26,25,000/-. That sale was confirmed later. Thereafter some events took place. But they are not relevant for disposal of this revision. When the second revision petitioner took an objection that inasmuch as the first respondent did not deposit the non judicial stamps and as no poundage was collected from him, the sale is liable to be set aside,, the trial Court refused to set a side the sale, but held, by the order under revision, that in view of Rule 5 of the Process Fee Rules all the parties are liable to pay the poundage and issued notice to all the parties to pay the poundage into Court on or before 28-08-2003. Questioning the said order revision petitioners, who are defendants 1, 3 to 5 in the suit, preferred this revision.

(3.) The contention of the learned counsel for the revision petitioners is that since poundage would be collected for the service rendered and since the Court did not render any service to the revision petitioners and inasmuch as the auction was held in view of the provisions of the Partition Act in between the parties to the suit and was not a public auction, under Order XXI CPC in execution of a decree, revision petitioners are not liable to pay any amount towards poundage and even if any poundage has to be paid, it is the highest bidder that has to pay the poundage but not all the parties to the suit in proportionate to their shares, and placed strong reliance is placed on Aziz Khatoon Vs. Surayya Begum1962 (2) ALT 414 (D.B) and Anantha Sambaiah Vs. V.Venkoba Rao 1967 (2) ALT 267 (D.B) in support of the said contention. There is no representation on behalf of the respondents though served. Therefore, 1 requested Sri M.R.S.Srinivas, advocate, to assist the Court as Amicus Curie. He also contended that the order passed by the trial Court appears to be erroneous and is not in consonance with the ratio in Aziz Khatoon case (1 supra) relied on by the learned counsel for the revision petitioners, which was referred to and followed in Anantha Sambaiah case (2 supra).