SITA RAM BISHAMBAR DASS Vs. JOGINDER KUMAR

JUDGEMENT

(1.) TWO houses Nos. 1256 and 1257 situate in Amritsar City belonged jointly to the parties to this litigation. A suit for partition of this property by metes and bounds was filed, which resulted in a preliminary decree on 27-2-1959. Appeal against the same was also dismissed by this Court on 9-11-1960. A Local Commissioner was appointed to effect ma partition, but he, however, reported that the houses could not be partitioned by metes and bounds. Consequently, on 23-1-1961 the learned subordinate Judge ordered that this property be auctioned under the provisions of section 2 of the Partition Act, 1893, and the proceeds thereof be divided amongst the various co-owners in accordance with their shares. It may be mentioned that on this very date Sita Ram, one of the co-owners, refused to purchase the houses and stated that they might be auctioned. These houses were put to auction and house No. 1256 was purchased by Aya Singh for Rs. 5,750/- and the other by smt. Pushpa Rani. The sale in favour of Smt. Pushpa Rani was continued on 12-51961 and there is no dispute with regard to this house. On 14-3-1961 Sita Ram filed an application under Order 21, Rule 89, Civil Procedure Code, praying that he be allowed to purchase house No. 1258, its sale he set aside and he be permitted to depositive per cent of the sale price. The Court permitted the deposit of this amount and notice of this application was given to the auction-purchaser, who opposed the same, contending that the provisions of Order 21, Rule 89, did not apply to the facts of this case; that Sita Ram having given his consent to the auction could not object to it; and that since the applicant did not deposit the entire amount as contemplated by the provisions of Order 21, Rule 89, Civil procedure Code, his application was liable to be dismissed.

(2.) THE following two issues were framed in this case: 1. Whether the sale of the property In favour of Aya Singh is liable to be set aside? 2. Whether Sita Ram has a locus standi to file the present application?

(3.) THE Subordinate Judge found that although Sita Ram had locus standi to file the present application for setting aside the sale under Order 21, Rule 89, Civil procedure Code, yet the sale of the house in favour of Aya Singh was not liable to be set aside, because Sita Ram had not deposited the entire sale-money and had only deposited five per cent of the same. Moreover, he had already waived his right, because he had previously made a statement to the effect that he was not willing to purchase this house. On these findings, the application was dismissed. Against this decision the present appeal has been filed by Sita Ram.