J.B.PRAVEENKUMAR v. J.S.SATHYANARAYANA RAO

Judgment

3. J.S.SATHYANARAYANA RAO S/O J.SUBBA RAO, AGED ABOUT 59 YEARS, HOSAMANE EXTENSION, SHIVAMOGGA-577201. ASHA ANAND W/O ANAND, D/O LATE J.S.BHIMA RAO, AGED ABOUT 48 YEARS, C/O PRABHAVATHI, D.NO.60, (OUT HOUSE), R/O OLD HOUSING BOARD, HOSAMANE. NANDA K. IJANTHKAR W/O KUSHA IJANTHAKAR, D/O LATE J.S.BHIMA RAO, MAJOR IN AGE, HARDWARE AND PAINTS, BESIES SHIVASAGAR HOTEL, - 2 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017

9. SUBASH ROAD, DHARWAD-580001. RENUKA @ MUNNI V.G.PUTANE W/O V.C.PUTTANES, D/O LATE J.V.BHIMA RAO, MAJOR, R/O 2ND CROSS, KOPPADAKERI, DHARWAD-580001. SHARADHA BAI W/O J.S.VENKATESH RAO, AGED ABOUT 69 YEARS, R/O CLERKPET, SHVAMOGGA-577201. BHARATHI W/O VENKATESH, AGED ABOUT 49 YEARS, NEW BOMBAY CUT PIECE, URS ROAD, MYSURU-570001. SAVITHRI @ URMILA W/O SURESH TIKARE, AGED ABOUT 46 YEARS, TIKARE METALS, TIKARE ROAD, DHARWAD-580001. REVATHI W/O JULLANDAR, AGED ABOUT 43 YEARS, R/O MYSORE HALL, SAYAJI RAO ROAD, MYSURU-570001. RUKMINI W/O SUBHASH MAHENDRAKAR AGED ABOUT 41 YEARS, RAMJIN STORES, R/O NEW HOSHI ROAD, GADAG-582101.

10. VANITHA W/O NARASIMHA MURTHY, AGED ABOUT 38 YEARS, - 3 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 R/O BEHIND RAGHAVENDRA SWAMY MUTT, OLD TOWN, BHADRAVATHI, SHIVAMOGGA-577201.

12. J.N. LALITHAMMA W/O J.S.NAGARAJ RAO, AGED ABOUT 61 YEARS, NO.220, EWS HOUSING ROAD, HUDCO COLONY, UDAYAGIRI, MYSURU-577001. G.K. UMA W/O G.R.RAVINDRANATH, AGED ABOUT 46 YEARS, NO.2385, MANJUNATHA NILAYA, 2ND MAIN ROAD, 4TH CROSS, M.C.COLONY, DAVANAGERE-577002. DEAD BY LRS 12(a) RAVINDRANATH G.K. S/O KANDOJI RAO MAJOR IN AGE 12(b) VINAY G.R. S/O RAVINDRANATH G.K. MAJOR IN AGE 12(c) NAVEEN G.R. S/O RAVINDRANATH G.K. MAJOR IN AGE 12(d) RADHIKA D/O RAVINDRANATH G.K. MAJOR IN AGE 12(e) DEEPAK S/O RAVINDRANATH G.K. MAJOR IN AGE RESPONDENTS 12(a) TO 12(e) ARE RESIDENTS OF NO.2385, 'MANJUNATHA NILAYA', 2ND MAIN ROAD, 4TH CROSS, M.C.COLONY, DAVANAGERE-577001. - 4 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017

18. AMENDED PAS PER THE ORDER OF THIS HON'BLE COURT DATED 21.08.2023. J.N. SURESH BABU S/O J.S.NAGARAJ RAO, AGED ABOUT 43 YEARS, NO.402, ESW ROAD, HUDCO COLONY, UDAYAGIRi, MYSURU-577001. P.S. GAYATHRI W/O BABU RAO, AGED ABOUT 39 YEARS R/O BANASHANKARI EXTENSION, 3RD MAIN, BENGLURU-560070. M.N. RAMAMANI W/O ANANDA RAO, AGED ABOUT 35 YEARS, R/O NO.321, MUQBIN MOSQUE ROAD, NORTH EAST EXTENSION, N.R.MOHALLA, MYSURU-577001. T.R. JAYANTHI W/O SUBBA RAO, AGED ABOUT 33 YEARS, R/O NO.20, SUPRABATHA, ITI ROAD, VIJAYANAGARA, DOORAVANI NAGAR, BENGALURU-560040.

UMESH S/O. V.N.SRIKANTA RAO, MAJOR SUDHEER S/O. V.N.SRIKANTA RAO, MAJOR BOTH ARE RESIDING AT NEAR BHAGEERATHI RICE MILL, K.R.SAGAR, MYSURU-577001.

19. SUMATHI W/O UDAY SHANKAR PATHENGE, MAJOR, - 5 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017

21. R/O K.R.CIRCLE, MYSURU-577001. J.R. VIJAY S/O LATE J.S.RATHAN RAO, AGED ABOUT 39 YEARS, R/O CLERKPET, SHIVAMOGGA-577201. J.R. REETHU D/O LATE J.S.RATHAN RAO, W/O KAMAL DHAMODHAR, MAJOR, R/O HARDWARE SHOP, SUBHASH ROAD, DHARWAD-580001. …RESPONDENTS (BY SRI. PRUTHVI WODEYAR, ADVOCATE FOR RESPONDENT NO.1; SRI. G. LAKSHMEESH RAO, ADVOCATE FOR RESPONDENT NOS.6 TO 10, 13 TO 16, 12(a) TO 12(e); SRI. B.S.PRASAD, ADVOCATE FOR RESPONDENT NO.20, NOTICE IS SERVED ON RESPONDENT NO.4; VIDE ORDER DATED 21.03.2023 SERVICE OF NOTICE TO RESPONDENT NO.2 IS HELD SUFFICIENT AND NOTICE TO RESPONDENT NOS.3, 5, 11, 17, 18, 19 AND 21 IS DISPENSED WITH) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED

07.02.2019 ON I.A.NO.15 AND ORDER DATED 01.06.2019 ON I.A NO.19 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA IN FDP NO.19/2009 PRODUCED AS PER ANNEXURES-J AND L RESPECTIVELY. IN W.P.NO.42251/2017: BETWEEN:

1. J.B.PRAVEENKUMAR S/O LATE J.S. BHIMA RAO - 6 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017

3. AGED ABOUT 51 YEARS, R/O CLERKPET SHIVAMOGGA-577201 J.R. VIJAY S/O LATE J.S. RATHAN RAO AGED ABOUT 37 YEARS, R/O CLERKPET SHIVAMOGGA-577201. J.R. REETHU D/O LATE J.S. RATHAN RAO W/O KAMAL DHAMODHAR MAJOR, R/O HARDWARE SHOP, SUBHASH ROAD, DHARWAD-580001 (BY SRI. P N HARISH, ADVOCATE FOR PETITIONER NO.1; SRI. B.S. PRASAD, ADVOCATE FOR PETITIONER NOS.2 AND 3) …PETITIONERS AND:

3. J.S.SATHYANARAYANA RAO S/O J.SUBBA ROAD, AGED ABOUT 57 YEARS, HOSAMANE EXTENSION, SHIVAMOGGA-577201. ASHA ANAND W/O ANAND, D/O LATE J.S.BHIMA RAO, AGED ABOUT 46 YEARS, C/O PRABHAVATHI, D.NO.60, (OUT HOUSE), R/O OLD HOUSING BOARD, HOSAMANE. NANDA K. IJANTHKAR W/O KUSHA IJANTHAKAR, D/O LATE J.S.BHIMA RAO, HARDWARE AND PAINTS, BESIES SHIVASAGAR HOTEL, SUBASH ROAD, DHARWAD-580001. - 7 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017

9. RENUKA @ MUNNI V.G.PUTANE W/O V.C.PUTTANES, D/O LATE J.V.BHIMA RAO, MAJOR, R/O 2ND CROSS, KOPPADAKERI, DHARWAD-580001. SHARADHA BAI W/O J.S.VENKATESH RAO, AGED ABOUT 67 YEARS, R/O CLERKPET, SHVAMOGGA-577201. BHARATHI W/O VENKATESH, AGED ABOUT 47 YEARS, NEW BOMBAY CUT PIECE, URS ROAD, MYSURU-570001. SAVITHRI @ URMILA W/O SURESH TIKARE, AGED ABOUT 44 YEARS, TIKARE METALS, TIKARE ROAD, DHARWAD-580001. REVATHI W/O JULLANDAR, AGED ABOUT 41 YEARS, R/O MYSORE HALL, SAYAJI RAO ROAD, MYSURU-570001. RUKMINI W/O SUBHASH MAHENDRAKAR AGED ABOUT 39 YEARS, RAMJIN STORES, R/O NEW HOSHI ROAD, GADAG-582101.

10. VANITHA W/O NARASIMHA MURTHY, AGED ABOUT 36 YEARS, R/O BEHIND RAGHAVENDRA SWAMY MUTT, OLD TOWN, BHADRAVATHI, SHIVAMOGGA-577201. - 8 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017

12. J.N. LALITHAMMA W/O J.S.NAGARAJ RAO, AGED ABOUT 59 YEARS, NO.220, EWS HOUSING ROAD, HUDCO COLONY, UDAYAGIRI, MYSURU-577001. G.K. UMA W/O G.R.RAVINDRANATH, AGED ABOUT 44 YEARS, NO.2385, MANJUNATHA NILAYA, 2ND MAIN ROAD, 4TH CROSS, M.C.COLONY, DAVANAGERE-577002. DEAD BY LRS 12(a) RAVINDRANATH G.K. S/O KANDOJI RAO MAJOR IN AGE 12(b) VINAY G.R. S/O RAVINDRANATH G.K. MAJOR IN AGE 12(c) NAVEEN G.R. S/O RAVINDRANATH G.K. MAJOR IN AGE 12(d) RADHIKA D/O RAVINDRANATH G.K. MAJOR IN AGE 12(e) DEEPAK S/O RAVINDRANATH G.K. MAJOR IN AGE RESPONDENTS 12(a) TO 12(e) ARE RESIDENTS OF NO.2385, 'MANJUNATHA NILAYA', 2ND MAIN ROAD, 4TH CROSS, M.C.COLONY, DAVANAGERE-577001. AMENDED AS PER THE ORDERS OF THIS HON'BLE COURT DATED 11.04.2023. - 9 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017

19. J.N. SURESH BABU S/O J.S.NAGARAJ RAO, AGED ABOUT 41 YEARS, NO.402, ESW ROAD, HUDCO COLONY, UDAYAGIRI, MYSURU-577001. P.S. GAYATHRI W/O BABU RAO, AGED ABOUT 37 YEARS, R/O BANASHANKARI EXTENSION, 3RD MAIN, BENGALURU-560070. M.N. RAMAMANI W/O ANANDA RAO, AGED ABOUT 33 YEARS, R/O NO.321, MUQBIN MOSQUE ROAD, NORTH EAST EXTENSION, N.R.MOHALLA, MYSURU-577001. T.R. JAYANTHI W/O SUBBA RAO, AGED ABOUT 31 YEARS, R/O NO.20, SUPRABATHA, ITI ROAD, VIJAYANAGARA, DOORAVANI NAGAR, BENGALURU-560040. UMESH S/O. V.N.SRIKANTA RAO, MAJOR SUDHEER S/O. V.N.SRIKANTA RAO, MAJOR BOTH ARE RESIDING AT NEAR BHAGEERATHI RICE MILL, K.R.SAGAR, MYSURU-577001. SUMATHI W/O UDAY SHANKAR PATHENGE, MAJOR, R/O K.R.CIRCLE, MYSURU-577001. …RESPONDENTS - 10 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 (BY SRI. PRUTHVI WODEYAR, ADVOCATE FOR RESPONDENT NO.1; VIDE ORDER DATED 21.11.2017 SERVICE OF NOTICE TO RESPONDENT NOS.2 TO 11, 17 TO 19 IS DISPENSED WITH; SRI. G. LAKSHMEESH RAO, ADVOCATE FOR RESPONDENT NOS.6 TO 10, 13 TO 16, 12(a) TO 12(e)] THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ON I.A.7 PRODUCED AS PER ANNEXURE-F DATED 22.07.2017 PASSED IN FDP NO. 19/2009 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA AND THEREBY DISMISS THE I.A.NO.7 FILED BY THE RESPONDENT NOS.12 TO 16 IN FDP NO.19/2009 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA AT ANNEXURE-D. THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER IN W.P. No.42251/2017 The respondent Nos.1(b), 2(b) and 2(c) in FDP No.19/2009 pending consideration before the Principal Senior Civil Judge and CJM., Shivamogga, (henceforth referred to as 'the Final Decree Court') have filed this petition challenging an order dated 22.07.2017 by which the Court allowed an application (I.A. No.VII) filed by respondent Nos.10 to 14 in FDP No.19/2019 under Section - 11 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 2 of the Partition Act, 1893 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’).

2. A suit in O.S. No.31/1990 was filed for partition and separate possession of the plaintiff’s 1/5th share in the schedule properties which was decreed on

08.10.2004. The respondent No.2 in FDP No.19/2009 – Sri J.S. Rathnakar filed R.F.A. No.346/2005 and Sri J.S.Bheema Rao filed R.F.A. No.218/2005 before this Court where a settlement was reported and both the appeals were disposed off on 17.01.2012 in terms of the settlement arrived at between the parties. Following this, final decree proceedings was initiated in FDP No.19/2009. The Final Decree Court appointed a Commissioner to verify whether the partition of item Nos.1, 3 to 5 of the decree schedule properties was feasible or not. The Commissioner submitted a report on 08.01.2015 stating that having regard to the extent of the item Nos.1, 3 to 5 of the decree schedule properties, their partition into five equal shares, is not possible. The parties had filed objections to - 12 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 the Commissioner’s report contending that item Nos.1, 3 to 5 of the decree schedule properties are partible. Even before the report of the Commissioner was accepted, respondent Nos.10 to 14 in FDP No.19/2019 filed an application before the Final Decree Court under Section 2 of the Partition Act, 1893 read with Section 151 of CPC to put up the petition schedule ‘A’ item Nos.1, 3 to 5 properties for auction sale.

3. The Final Decree Court after hearing all the parties concerned, allowed the application in terms of the impugned order and it also tentatively fixed the base price for the auction of the item Nos.1, 3 to 5 of the decree schedule properties.

4. Being aggrieved by the impugned order, the petitioners have filed this petition.

5. Learned counsel for the petitioners contended that the Final Decree Court could not have proceeded to allow the application (I.A No.VII) even before accepting the report of the Commissioner. He submitted that the - 13 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 nature of the properties is such that they could be divided amongst the sharers and the Trial Court did not consider it feasible to explore this possibility.

6. Per contra, learned counsel respondent No.1 contends that pursuant to the impugned order, the Trial Court had put up item Nos.1, 3, 4 and 5 of the decree schedule properties for auction and some of the bidders had already deposited part of the bid amount. Therefore, to undo the auction process at this point in time, would be injurious to them.

7. After looking report of Commissioner and also the nature of the properties in question, when this Court suggested to the learned counsel for the petitioners and the learned counsel for the contesting respondents to accept the report of the Commissioner that the item Nos.1, 3 to 5 of the decree schedule properties are impartible, all of them accepted it.

8. Learned counsel for the petitioners, however, contended that if the Final Decree Court is directed to - 14 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 proceed with the auction on report of Commissioner without fixing the reserve price, he would have no objection.

9. In that view of the matter, since all the parties are in agreement to the fact that the item Nos.1, 3 to 5 of the decree schedule properties are not partible and that the only way to divide the properties is by a sale amongst the sharers and apportion the proceeds, this Court deems it appropriate to dispose off this writ petition by upholding the impugned order passed by the Trial Court subject to the following directions: (i). The Final Decree Court shall conduct an auction of the item Nos.1, 3, 4 and 5 of decree schedule properties on “as is where is basis” amongst the sharers or their legal representatives on 05.04.2024 at 3 p.m. without issuing any further notice to the parties; - 15 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 (ii). The deposit under Order XXI Rule 84 of the Code of Civil Procedure, 1908 and under Order XXI Rule 85 of CPC shall be complied with by the auction purchasers in letter and spirit. Since the office of the Trial Court would be open during the summer vacation 2024, the time to deposit under Order XXI Rule 85 of CPC shall run even during the summer vacation 2024. If the bid amount is not deposited, as prescribed under Order XXI Rule 85 of CPC, the procedure as provided under Order XXI Rules 86 and 87 of CPC shall be complied with. Upon deposit of the entire amount, the sale shall be confirmed in favour of the highest bidder in respect of each item or all the items of properties as the case may be; (iii). It is needless to mention that any amount already deposited by any of the - 16 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 sharers in the earlier process of auction together with accrued interest, if any, shall be adjusted against the amounts that they may bid at the auction and shall be appropriated against the amounts that may be liable to be deposited by them; (iv). Upon confirmation of the sale, the Final Decree Court shall direct the issuance of certificate of sale and its registration in accordance with law; and (v) It is made clear that the Final Decree Court shall not in any circumstances entertain any objections by any of the sharers or representatives against the auction sale except accordance with Order XXI Rules 89 and 90 of CPC. - 17 - NC: 2024:KHC:11748 WP No. 27664 of 2019 C/W WP No. 42251 of 2017 IN W.P. NO.27664/2019 In view of the order passed by this Court in W.P. No.42251/2017 today, W.P. No.27664/2019 does not survive for consideration and hence, the same dismissed. Sd/- JUDGE SMA List No.: 1 Sl No.: 26