P JANARDHAN RAO Vs. POLA MOHAN RAO

JUDGEMENT

(1.) This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the orders of the learned Senior Civil Judge at Sathupally assailing the orders dtd. 11/11/2019 made in I.A. No. 685 of 2015 in I.A. No. 943 of 2014 in O.S. No. 11 of 1989. By the impugned order, the learned Senior Civil Judge allowed the application filed by the plaintiff, respondent No. 1 herein, under Sec. 151 C.P.C. read with Sec. 3 of the partition Act, 1893 for conducting auction of the suit schedule-A property among the parties to the lis in the open Court.

(2.) The chequered events of the case are that the respondent No. 1 herein instituted O.S. No. 11 of 1989 for partition and separate possession of suit schedule properties, wherein, a preliminary decree was passed on 22/7/1991 dividing the suit schedule A, B and part-I of C schedule properties into 1/6th equal shares. Out of the said items of schedule properties, schedule-A property is immovable property, and seeking its division, by way of final decree, I.A. No. 943 of 2014 came to be filed by the plaintiff. The Advocate-Commissioner, who was appointed to divide the schedule-A property as per the preliminary decree, after serving due notices on the parties, executed the warrant and filed his report on 30/7/2015 stating that the width of schedule-A property and its open site is less than 9 feet and therefore, it cannot be beneficially partitioned into 6 equal shares and even if it is partitioned, it cannot help anybody and the property looses its value. As no objections, to the said report, were filed by any of the party, including the revision petitioner, the AdvocateCommission petition was closed on 14/8/2015. In light of the report of the Advocate-Commissioner, the plaintiff, respondent No.1 herein, approached the trial Court with the impugned I.A. for conducting auction of schedule-A property among the parties in the open Court. Initially, the said application was allowed by the trial Court on 20/12/2017, assailing which, the revision petitioner, defendant No. 2 in the suit, carried the matter to this Court in C.R.P. No. 831 of 2018. This Court disposed of the said revision on 14/2/2018 directing the trial Court to follow the principles laid down by the Apex Court in Aloka Dudhoria v. Goutam Dudhoria, AIR 2010 SC 53 while appointing the Advocate Commissioner for conducting sale of the property. Thereafter, the trial Court passed orders on 7/6/2018 in I.A. No. 685 of 2015 for conducting auction observing that the matter was considered as per the decision in Aloka Dudhoria (supra) by receiving the market certificate from the Sub-Registrar, Wyra, valuation certificate, Encumbrance Certificate and the certified copy of the sale deed of a house in the vicinity. Again, assailing the said orders, the revision petitioner carried the matter in revision before this Court being C.R.P. No. 3741 of 2018 contending that the trial Court had not followed the orders of this Court dtd. 14/2/2018 in C.R.P. No. 831 of 2018 in ordering auction of the property and that the objections of the revision petitioner to the Report of the Commissioner, dtd. 30/7/2015 were not considered. The said C.R.P. was allowed on 3/8/2018 directing the trial Court to consider the principles laid down in Rani Aloka Dudhoria (supra) as directed in C.R.P. No. 831 of 2018 and to follow the provisions of the Partition Act, 1893. Subsequently, the trial Court passed order on 24/8/2018, which reads as under:- 'As per orders passed in CRP No. 3741 of 2018 by Hon'ble High Court, Sri K. Nageswar Rao appointed as Advocate Commissioner to partition the property as per preliminary decree and conduct auction among the family members and advocate fee is about 3000/- for report call on 17/9/2018 and followed the apex court Judgment Rani Aloka Dudduriay vs. Goutham Dudduriya and others'.

(3.) Assailing the above orders, the revision petitioner again filed C.R.P. No. 6978 of 2018 contending that no reserve price was fixed as per Sec. 6 of the Partition Act, 1893; that there is no reference to the principles laid down in Rani Aloka Dudhoria (supra) or to the provisions of the Partition Act, 1893; and that there is no consideration of the objections raised by the petitioner to the report, dtd. 30/7/2015. Having found that the trial Court has not complied with the orders dtd. 3/8/2018 in C.R.P. No. 3741 of 2018, this Court while disposing of C.R.P. No. 6978 of 2018, set aside the orders of the trial Court dtd. 24/8/2018, remanded the matter to the trial Court with a direction to comply with the orders dtd. 3/8/2018 in C.R.P. No. 3741 of 2018 as also the orders dtd. 14/2/2018 in C.R.P. No. 831 of 2018 and also to consider the objections raised by the revision petitioner to the Advocate-Commissioner's Report dtd. 30/7/2015 and to proceed with the matter strictly in accordance with the provisions of the Partition Act. Thereafter, vide impugned orders dtd. 11/11/2019, the trial Court allowed I.A. No. 685 of 2015 directing sale of plaint schedule-A property among the family members. Challenging the same, this revision is filed by the defendant No. 2.