MOTILAL BABULAL SUNAR Vs. RAJARAM MITHAILAL SUNAR

JUDGEMENT

(1.) THIS revision under section 115 of the Civil Procedure Code is by one of the defendants against the order, dated 22 -6 -1961, passed by Shri M. K. Kaul, District Judge, Jabalpur, in Miscellaneous Civil Appeal No. 60 of 1960, affirming the order, dated 6 -9 -1960, passed by Shri B. B. L. Agarwal, First Civil Judge, First Class, Jabalpur, in Civil Suit No. 6 -A of 1945. Mithailal (since deceased and predecessor of the first non -applicant, Raja -ram) and Mst. Ranibahu (who also died after the preliminary decree) filed a suit for partition and separate possession of their shares in the joint family property. A Commissioner was appointed to effect a partition by metes and bounds. As regards the house property the Commissioner reported that it was not possible to effect a partition of the house. Therefore, the Commissioner made two alternative proposals. The first suggestion was that Chokhelal and Sunderlal who were then occupying the house, might be allowed to retain its possession provided they were prepared to offer its value as estimated by an engineer to the other coparceners. However, this proposal was not acceptable to Chokhelal or Sunderlal. The alternative suggestion was that the entire property be sold by public auction and the proceeds be divided amongst all the sharers. This proposal was acceptable to all the parties concerned. Therefore, the Court, by order, dated 2 -7 -1962 directed the house property to be sold through the Court.

(2.) IN the meantime in execution of a decree against the petitioner Motilal, house No. 170 had been sold for Rs. 6,000 for recovery of Rs. 117 -12 -0 only. After the amount was paid to the decree -holder of that decree, Motilal withdrew the balance of the amount in spite of an order of the Court to the contrary. He was directed to deposit the amount in Court for distribution among different sharers. But, he failed to carry out that order on the assertion that he was entitled to an amount from the other sharers after accounting and the same amount be adjusted towards that. Ultimately, the house was sold on 21 -6 -1960 and was purchased by the fifth non -applicant, Kalloolal for a consideration of Rs. 21,500. In this connection, the petitioner had moved the trial Judge for permission to bid at the auction and the permission had been granted on the condition that the petitioner's reserve bid should be at Rs. 30,000 minimum. The petitioner, therefore, did not bid at the auction, as he was not prepared to offer the minimum bid at Rs. 30,000. Thereafter, the petitioner filed an application purporting to be one under Order 21, rule 90, Civil Procedure Code for setting aside the auction sale. During those proceedings the Court with the consent of the other parties again made an offer to the petitioner to purchase the house for the auction price of Rs. 21,500, which he was required to deposit in cash. The petitioner, however, insisted on no payment being made by him and claimed that the entire amount of Rs. 21,500 be adjusted towards the amount that may be found due to him after accounts were taken by the Commissioner. The learned Judge of the trial Court refused to accede to this request and, therefore, confirmed the sale in favour of the fifth non -applicant. The learned appellate Judge affirmed that order by holding that the same was not appealable either under section 96 or Order 43, rule 1 (j) of the Civil Procedure Code. Relying on the case of Jadunaih v. Permeskwar LR, 67 IA 11, the learned Judge expressed the opinion that the proceedings between the preliminary and the final decree were proceedings in the suit. For this reason, the order was not appealable under section 47 of the Civil Procedure Code as well. However, further relying on the case of Pedapudi Vissanna v. Pedapudi Visurtbrakmam, AIR 1957 AF 25, the learned Judge held that the same could be treated as a second preliminary decree and appealable as such. However, the sale could not be set aside in the absence of any substantial injury, as laid down in Ckellama v. Rama, AIR 1946 Mad. 337 :, ILR 1946 Mad. 795. It was also expressed, relying on Subhamma v. Veerayya : AIR 1932 Mad. 15, that the Court could, under inherent powers, refuse to divide the property by metes and bounds and adopt such other means which may appear to be equitable for effecting a just partition. The question that arises for consideration is whether the order impugned is appealable or revisable. Such a sale is held either under section 2 or 3 of the Partition Act read with Order 20, rule 18, Civil Procedure Code. Order 21, rule 89 or 90 of the Civil Procedure Code cannot in terms apply to such a sale held by the Court or the receiver or the Commissioner. The said provisions apply to an auction sale held in execution of a decree. The proceedings between the preliminary decree and the final decree cannot be said to be proceedings in the execution, as laid down by their Lordships of the Privy Council in Jadunath v. Permeshwar LR, 67 IA 11. They are, undoubtedly, proceedings in the suit. Can it be said that an appeal lies under section 96 of the Civil Procedure Code ?

(3.) HOWEVER , the question about the tenability of an appeal or a revision need not detain us. I feel that it is necessary to consider the merits of the petitioner's contention, as an item of the joint family property has been sold to a stranger and it is his grievance that he has been denied an opportunity to purchase that. Section 2 of the Partition Act (No. 4 of 1893) empowers the Court to order sale instead of division. That power is exercisable by the Court under Order 20, rule 18, Civil Procedure Code. Section 3 lays down the procedure when a sharer undertakes to buy the property. Section 4 relates to the transfer of a share in a dwelling house to a stranger. Section 6 provides for fixing of reserve bids to be offered by the share -holders. Section 7 provides that the procedure at such sales shall as far as practicable be such as may from time to time be prescribed by the High Court by any rules and until such rules are made the procedure prescribed in the Code of Civil Procedure in respect of execution sales shall be applicable. Therefore, according to section 7 of the said Act, the procedure laid down in Order 21 is made applicable to such sales. For this reason, I am of opinion that the appeal before the learned District Judge was tenable under Order 43, rule 1 (j) of the Civil Procedure Code, as this High Court has not framed any specific rules in this behalf. For this reason, I am unable to accept the view of the learned District Judge that the appeal was not tenable under Order 43, rule 1 (j) of the Civil Procedure Code. Consequently the present revision under section 115 of the Civil Procedure Code is also tenable. Further, it has to be seen if the provisions of the Partition Act were violated by the trial Judge. In this connection it is to be noted that the petitioner was given a choice to offer bid and the reserve bid was fixed at Rs. 30?000. That may be higher than the actual price fetched at the auction -But, even after the auction was held, the petitioner was given another opportunity to purchase it for Rs. 21,500. He was required to deposit the amount in cash. It is this direction which is assailed by the learned counsel for the petitioner. It is urged that the petitioner was entitled to adjustment of the amount that might be found due to him. In this connection, I may only observe that the petitioner as a sharer would, no doubt, be entitled to adjust any amount that may be found due to him. But, the petitioner's conduct has to be judged in the light of an earlier incident. Another house belonging to the joint family was sold in execution of a decree for Rs. 117 -12 -0 against the petitioner alone. The sale -price fetched was Rs. 6,000. After payment of the said amount of Rs. 117 -12 -0 with costs to the decree -holder, the petitioner withdrew the balance of the amount in spite of an order of the Court to the contrary. He was directed by the trial Court to deposit the amount withdrawn and to make it available to the other sharers. He did not comply with that order. Consequently, the trial Judge, in my opinion, was right in refusing to allow him any adjustment when he himself was guilty of a wrongful act in having withdrawn the amount, which should have been made available to the other sharers. If he is not prepared to allow adjustment to the other sharers, he himself cannot claim any adjustment in equity. After all, adjustment is an equitable right, which is indisputably reciprocal. It cannot be unilateral as is claimed by the petitioner. Therefore, in my opinion, the trial Judge was right in taking a serious view of the petitioner's conduct and in not permitting him to have an adjustment and in insisting upon the whole of the sale -price of Rs. 21,500 being deposited in cash. As a result, the order under revision cannot be assailed on any ground whatsoever. Consequently this revision fails and is dismissed with costs. Counsel's fee Rs. 50, if certified.