PUSHPA JOSE v. JENSON

OP(C).No. 3506 of 2011 (O) -2- 5. C.J.JACOB,CENTRAL LODGE BUILDING, THIRUNAKKARA,KOTTAYAM-686 001.6. C,J.KUNJAMMA,KUZHIMANNIL HOUSE, NALUKODY.P.O,PAIPAD-686 545.7. C.J.THRESSIAMMA,W/O.K.D.VARGHESE, THERUVIPPARAMBIL,VADUTHALA,ERNAKULAM-682 023.8. C.J.MARIAMMA,VALIYAVEETTIL HOUSE, NEAR BY-PASS,PALARIVATTOM,ERNAKULAM PIN-682 025.9. BINDHU KURIAN,BOAT VILLAGE,NEAR O.K.HOSPITAL,KODUNGALLOOR-680 664. R1 BY ADV. SRI.PHILIP T.VARGHESE R2 & R3 BY ADVS. SRI.P.B.SURESH KUMAR (SR.) SMT.K.K.RAZIA R4 BY ADV. SRI.SUNIL KUMAR A.G R7 & R8 BY ADVS. SRI.A.P.SUBHASH SRI.T.I.ABDUL SALAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2012,ALONG WITH OPC. 3748/2011, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: OP(C).No. 3506 of 2011 (O) APPENDIXPETITIONER'S EXHIBITS :-EXT.P1:TRUE COPY OF THE I.A NO.196 OF 2010 DATED 12-1-2010 INO.S NO.399 OF 1987 ON THE FILE OF SUB COURT, KOTTAYAM.EXT.P2:TRUE COPY OF THE OBJECTION DATED 11-8-2010 FILED BY THE RESPONDENT NO.1.EXT.P3:TRUE COPY OF THE OBJECTION DATED 8-4-2011 FILED BY THERESPONDENT NOS.2 AND 3.EXT.P4:TRUE COPY OF THE AFFIDAVIT DATED 16-3-2011 FILED BY GEORGE MATHEW.EXT.P5:TRUE COPY OF THE ORDER DATED 2-9-2011 IN I.A NO.196 OF2010 AND CONNECTED APPLICATION IN O.S NO.399 OF 1987 ON THE FILE OF THE SUB COURT, KOTTAYAM.RESPONDENT'S EXHIBITS :NIL.//TRUE COPY//P.A TO JUDGEamk V.CHITAMBARESH,J. = = = = = = = = = = = O.P (C) No.3506 & 3748 of 2011 = = = = = = = = = = = == = = = = Dated this the 20th day of July, 2012 J U D G M E N TO.P.(C)No.3748 of 2011 has been filed by the fourthdefendant and O.P( C) No.3506 of 2011 has been filed by thelegal heirs of the seventh defendant in a suit for partition. ItemNo.2 property of the plaint schedule was sold on 15-3-2008 andwe are concerned with the sale of item No.1 property on22-12-2009. The property was admittedly in custodia legis andthe Advocate Receiver conducted the sale. None of the sharersbid the property in the auction held amongst them on an earlieroccasion.2. The upset price of item No.1 property was initially fixedat Rs.75,00,000/- (Rupees seventy five lakhs only) and theproperty proclaimed for sale on 3-8-2006. None came forward tobid in the public auction held on 3-8-2006 as evident by thereport of the Advocate Receiver. This property was againproclaimed for sale on 22-8-2006 and 15-3-2008 fixing the upset O.P (C) No.3506 & 3748 of 20112price at Rs. 75,00,000/- (Rupees seventy five lakhs only). Thecourt below was therefore forced to reduce the upset price toRs.70,00,000/- (Rupees seventy lakhs only) by order dated19-3-2009. Even then the property was not sold in publicauction. Eventually the upset price was fixed at Rs.55,00,000/-(Rupees fifty five lakhs only) by order dated 7-11-2009 of thecourt below.3. Item No.1 property is 14.393 cents of land with thebuilding thereon situated within the limits of Kottayam Town.The building is 60 years old and a portion of the property isoccupied by a few tenants even. The Advocate Commissioner hadinitially valued the property at Rs. 45,18,000/- (Rupees forty fivelakhs eighteen thousand only) as against the valuation of theTahsildar at Rs.13,31,640/-(Rupees thirteen lakhs thirty onethousand six hundred and forty only) . The property was jointlybid by respondent Nos. 2 and 3 in these original petitions in theauction sale held on 22-12-2009 for a sum of Rs.55,05,000/-(Rupees fifty five lakhs five thousand only). The following factorsare drummed up in support of the plea to set aside the sale bythe fourth defendant and the legal heirs of the seventh O.P (C) No.3506 & 3748 of 20113defendant. i) The sale was conducted not in open court but in theoffice of the Receiver. ii) The sale was conducted not between 1.45 p.m and3.15 p.m but at 12 noon. Iii) The sale proclamation does not permit of joint bidders. iv) There has not been proper publication of the saleinorder to fetch a good price. 4. I should immediately note that this is not an executionsale wherein the auction should be held in open court under Rule341 of the Civil Rules of Practice(Kerala) . The proceedings ofOrder XXI are alien to a court sale in a partition suit which aregoverned by Rule 234 of the Civil Rules of Practice (Kerala)only. Rule 234 does not insist that the sale should be conductedin open court like in the case of an execution sale. The sale needbe held in open court only if it is amongst the sharers underRule 234(2) of the Civil Rules of Practice. Similarly thepermissible timing between 1.45 pm and 3.15 pm as per Rule341 is not applicable to a sale under Rule 234. 5. It is beyond dispute that single bidders can participate O.P (C) No.3506 & 3748 of 20114in the auction conducted by the Advocate Receiver. Singularincludes plural as per the provisions of the General Clauses Act .Therefore there is nothing wrong in the joint bidders beingpermitted to participate in the auction. The joint bidders 2 and 3in this case cannot also be faulted with. 6. The Advocate Receiver has published notice innewspaper, Municipal Office, Village Office, property and also inthe court notice board. Repeated publications were effected inthe Malayala Manorama daily having wide circulation in thearea. It cannot be any stretch of imagination be contended thatthere was no due publication of the auction sale. 7. The petitioners have a contention that the upset pricewas not mentioned in the sale proclamation issued by theAdvocate Receiver. Even Order XXI Rule 66 of the Code of CivilProcedure does not mandate the inclusion of upset price in thesale proclamation. The upset price was systematically reducedfrom 75,00,000/-(Rupees seventy five lakhs only) to 70,00,000/-(Rupees seventy lakhs only) and then to Rs. 55,00,000/- (Rupeesfifty five lakhs only) by orders of court. The court wasconstrained to lower the upset price only because no bidders O.P (C) No.3506 & 3748 of 20115turned up for the auction. 8. The petitioners contend that another property situatednear the KSRTC bus stand of extent 20 cents was sold for Rs.2.5crores. But the building in this property is pretty old. A portionof the property had been sold away even prior to the suit. Someof the portions of the property are also in the possession oftenants conducting business. The property cannot therefore besaid to have been sold for a ridiculously low price. 9. A faint contention was made on the basis of an affidavitfiled by a stranger quoting a higher price. But the person whohad quoted Rs. 75,00,000/- (Rupees seventy five lakhs only) inthe affidavit subsequent to the event is not before this court.The Advocate Receiver had made earnest attempts to sell theproperty at a higher price on earlier occasions. The saleconducted eventually on 22-12-2009 of item No.1 propertycannot be faulted with on any ground. The Original Petitions fail and are dismissed. V.CHITAMBARESH.JUDGEsmm O.P (C) No.3506 & 3748 of 20116 O.P (C) No.3506 & 3748 of 20117