Kandanuru Venkatadri vs Kandanuru Udayakiran Kumar And Others

G. Shyam Prasad, J

This civil revision petition arises out of the order and decree dated 21.12.2018 passed in IA No. 56 of 2017 in IA No. 47 of 1998 in OS No. 49 of 1992 on the file of the court of Senior Civil Judge, Gudur, SPSR Nellore District.

Heard learned counsel for the revision petitioner and learned counsel for the respondent.

The petitioner is the plaintiff, who has filed the suit for partition of the suit schedule properties against the respondents 1 to 4/defendants. Learned Senior Civil Judge, Gudur has passed a preliminary decree in the partition suit. The petitioners have filed a petition for passing of final decree in terms of the preliminary decree. The trial court has appointed an Advocate Commissioner to divide the plaint schedule property among the parties by metes and bounds for passing final decree. There are two house properties (item Nos. 2 and 3 of the plaint schedule), which could not be divided by metes and bounds and therefore, the petitioner has filed a petition under Section 2 of the Partition Act seeking permissior of the court to sell the properties. The trial court has granted permission for selling the properties and divide the share of sale proceeds among the sharers.

Aggrieved by the same, the present civil revision petition was filed by the petitioner/3rd respondent on the ground that the revision petitioner was a minor by the date of effecting partition and that the plaintiff in collusion with the other defendants, had obtained a collusive decree. Therefore, the revision petitioner filed a suit in OS No. 276 of 2017 before the court of Senior Civil Judge, Gudur, which is pending adjudication.

The trial court on consideration of the fact that the revision petitioner has not obtained any stay order in OS No. 276 of 2017 fi1ed by him, there is no obstruction for proceedrng with the final decree proceedings by conducting a public auction for sale of the properties.

The point for consideration is whether the revision petitioner is entitled for setting aside the order passed in 1A No. 56 of 2017?

Admittedly, OS No. 49 of 1992 was decreed in favour of the respondennt/plaintiff by a preliminary decree and he fried an application for passing a final decree. The court has appointed an Advocate Commissioner to divide the plaint schedule property among the sharers by metes and bounds for effecting partition of the schedule property in the final decree proceedings. As the house properties-item Nos. 2 and 3 of the plaint schedule could not be divided by metes and bounds, the petitioner/plaintiff has come up with an pplication in IA No. 56 of 2017 seeking permission of the court to sell item Nos. 2 and 3 of the schedule property in a public auction, as the property was indivisble by metes and bounds. The court granted permission for sale of item Nos. 2 and 3 of the schedule property in a public auction.

The contention of the revision petitioner that he has filed a suit in OS No. 276 of 2017 on the file of the Court of Senior Civil Judge, Gudur, and in view of the pendency of the suit, no further proceedings in the final decree can take place. The said contention cannot he accepted as the suit in OS No. 276 of 2017 was filed by the revision petitioner stating that a collusive decree has been passed in OS No. 49 of 1992 and at the time of passing of the decree, the revision petitioner was a minor and therefore the proceedings in final decree cannot take place now, has no legs to stand for the reason that there is no stay order granted in OS No. 276 of 2017 stopping final decree proceedings in OS No. 49 of 1992. The trial Court has rightly appreciated the said fact and allowed the petition with costs directing to sell the item Nos. 2 and 3 of the preliminary decree in a public auction and for distributing the sale proceedings among the sharers as per their respective shares.

Therefore, in the light of the foregoing reasons, as the revision petitioner has already filed OS No. 276 of 2017, which is pending and no stay order has been granted for stopping of the final decree proceedings, there is no obstruction from proceeding with the final decree proceedings for effecting sale of item Nos. 2 and 3 in a public auction. The grounds urged by the revision petitioner that the petitioner was a minor by the date of passing decree in OS No. 49 of 1992, cannot be considered in an application filed under Section 2 of the Partition Act. The revision petitioner has already filed the suit in OS No. 276 of 2017 stating that a collusive decree was passed and therefore, he can agitate his rights before the said Court.

On consideration of these facts, there are no valid grounds to interfere with the impugned order passed by the trial court in IANo. 56 of 2017.

In the result, the civil revision petition is dismissed. No costs.

Miscellaneous petitions pending if any, shall stand closed.