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Smt. Chandrawati Vs. Kallu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 251 of 1971
Judge
Reported inAIR1973All406
ActsPartition Act, 1893 - Sections 2
AppellantSmt. Chandrawati
RespondentKallu and ors.
Appellant AdvocateH.C. Rastogi, Adv.
Respondent AdvocateI.N. Misra and ;S.N. Pandey, Advs.
DispositionRevision dismissed
Excerpt:
.....- suit for partition of house - being too small to be partitioned - sold for the purpose of partition - all share holders be given an offer to purchase - more than one share holder interested in the purchase - no outsider to be allowed - when none of the share holder willing to purchase and property cannot be partitioned except through distribution of proceeds property may be sold to outsider - held , sale in favour of the applicant without being offered to other share holders cannot be held to be a sale. - - the learned district judge reversed the finding of the trial court, held that the application was maintainable and set aside the order of sale as well as the sale itself and directed the cancellation of the sale certificate. sale under section 2 of the partition act is..........through distribution of proceeds that a sale may be made in favour of an outsider. hence the sale in favour of the present applicant, without the property being offered to the other share-holders for purchase of the share cannot be held to be a sale held in accordance with law. the lower court was thus justified in getting aside the sale itself and cancelling the sale certificate.6. in the result the revision fails and is dismissed with costs.
Judgment:
ORDER

Hari Swarup, J.

1. This revision has been filed against the appellate order and proceedings arising out of an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the order of sale made under Section 2 of the Partition Act.

2. A suit for partition of a house was filed. The plaintiff applied that as the house was too small to be partitioned it should be sold and proceeds distributed under Section 2 of the Partition Act. The Munsif on that application directed the sale of the house and the house was sold in auction. Smt. Chandravati the present applicant, purchased the property. On coming to know of the sale the defendants applied under Order 9. Rule 13 of the Code of Civil Procedure for setting aside the order of sale. Learned Munsif dismissed the application holding that the application was not maintainable as preliminary and final decrees had already been passed in the case. The defendants went up in appeal. The learned District Judge reversed the finding of the trial Court, held that the application was maintainable and set aside the order of sale as well as the sale itself and directed the cancellation of the sale certificate. Against that order the auction purchaser has now come up in revision.

3. Learned counsel for the applicant first contended that the application under Order 9. Rule 13 was not maintainable as the order of sale did not amount to a decree but later on in view of Section 8 of the Partition Act rightly conceded that the order for sale made by the court under Section 2 of the Act amounted to a decree and the application was, therefore, maintainable. Learned counsel next contended that the finding of the court below that the sale was ordered ex parte is not correct on facts. It is, however, not open in this proceeding to go behind the findings recorded by the appellate court. The learned District Judge on a consideration of the evidence came to a conclusion of fact that the defendants had no notice about the order and the order was passed behind their back and they got knowledge of the order only when the sale was held. The court had jurisdiction to come to this conclusion and it cannot be set aside by taking a different view on the evidence in the revisional jurisdiction of this Court.

4. Learned counsel has lastly contended that the Court could not direct either setting aside of the order after the sale had been confirmed or set aside the sale itself. In support of his contention learned counsel has placed reliance on the case of Janak Raj v.Gurdial Singh, (AIR 1967 SC 608). That was a case in which an ex parte money decree had been passed and in execution of that decree the house of the judgment-debtor was sold. The court held that even after the ex parte decree was set aside the sale could not be set aside because it had been held in accordance with law. A sale which was held in accordance with the provisions of the Code of Civil Procedure could not be set aside merely because the ex parte decree had subsequently been set aside. The court also took notice of the fact that the judgment-debtor was not without remedy and he could have got remedy by taking resort of the provisions of Order 21, Rule 89, C.P.C. On all these circumstances the court held the sale to be valid. The circumstances of this case are entirely different and the law laid down in Janak Raj's case cannot have any applicability to the facts of this case. Here the sale was not being held in execution of any decree, but the order of sale was by itself a decree. Sale under Section 2 of the Partition Act is not something extraneous to any other proceedings like a decree so that the fall of those proceedings may not affect the sale. Here the proceedings for sale are independent proceedings in which the final order of sale itself amounts to a decree. In the present case the property which was to be the subject-matter of partition has itself been sold for the purpose of partition. There is also no alternative remedy as is available to a judgment-debtor when the sale is made in execution of a decree. Hence the ratio of the decision in Janak Raj's case cannot be made applicable to the facts and circumstances of the present case.

5. Section 2 of the Partition Act permits the making of an application by a share-holder for a direction for the sale of the property and distribution of the proceeds. The provisions of Section 2 are, however, subject to the provisions of Section 3 of the Partition Act, which provide that the share of the applying share-holder may be purchased by the remaining share-holders. The court has on application being made by such share-holders, to ascertain the valuation of the house and then has to offer to sell the same to such shareholders at the price so ascertained. If there are more than one who want to purchase the share an auction is to be held amongst them and no outsider is to be permitted to come in. Only when none of the share-holders is ready to purchase the property at the price ascertained and the property cannot be partitioned except through distribution of proceeds that a sale may be made in favour of an outsider. Hence the sale in favour of the present applicant, without the property being offered to the other share-holders for purchase of the share cannot be held to be a sale held in accordance with law. The lower Court was thus justified in getting aside the sale itself and cancelling the sale certificate.

6. In the result the revision fails and is dismissed with costs.


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