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Judgment
Justice V. Chitambaresh
O.P. (C) No. 3748 of 2011 has been filed by the fourth defendant and O.P(C) No. 3506 of 2011 has been filed by the legal heirs of the seventh defendant in a suit for partition. Item No. 2 property of the plaint schedule was sold on 15-3-2008 and we are concerned with the sale of item No. 1 property on 22-12-2009. The property was admittedly in custodia legis and the Advocate Receiver conducted the sale. None of the sharers bid the property in the auction held amongst them on an earlier occasion. The upset price of item No. 1 property was initially fixed at Rs. 75,00,000/- (Rupees seventy five lakhs only) and the property proclaimed for sale on 3-8-2006. None came forward to bid in the public auction held on 3-8-2006 as evident by the report of the Advocate Receiver. This property was again proclaimed for sale on 22-8-2006 and 15-3-2008 fixing the upset price at Rs. 75,00,000/- (Rupees seventy five lakhs only). The court below was therefore forced to reduce the upset price to Rs. 70,00,000/- (Rupees seventy lakhs only) by order dated 19-3-2009. Even then the property was not sold in public auction. Eventually the upset price was fixed at Rs. 55,00,000/- (Rupees fifty five lakhs only) by order dated 7-11-2009 of the court below.
Item No. 1 property is 14.393 cents of land with the building thereon situated within the limits of Kottayam Town. The building is 60 years old and a portion of the property is occupied by a few tenants even. The Advocate Commissioner had initially valued the property at Rs. 45,18,000/- (Rupees forty five lakhs eighteen thousand only) as against the valuation of the Tahsildar at Rs. 13,31,640/- (Rupees thirteen lakhs thirty one thousand six hundred and forty only). The property was jointly bid by respondent Nos. 2 and 3 in these original petitions in the auction sale held on 22-12-2009 for a sum of Rs. 55,05,000/- (Rupees fifty five lakhs five thousand only). The following factors are drummed up in support of the plea to set aside the sale by the fourth defendant and the legal heirs of the seventh defendant.
i) The sale was conducted not in open court but in the office of the Receiver.
ii) The sale was conducted not between 1.45 p.m. and 3.15 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 sale in order to fetch a good price.
I should immediately note that this is not an execution sale wherein the auction should be held in open court under Rule 341 of the Civil Rules of Practice (Kerala). The proceedings of Order XXI are alien to a court sale in a partition suit which are governed by Rule 234 of the Civil Rules of Practice (Kerala) only. Rule 234 does not insist that the sale should be conducted in open court like in the case of an execution sale. The sale need be held in open court only if it is amongst the sharers under Rule 234(2) of the Civil Rules of Practice. Similarly the permissible timing between 1.45 pm and 3.15 pm as per Rule 341 is not applicable to a sale under Rule 234.
It is beyond dispute that single bidders can participate in the auction conducted by the Advocate Receiver. Singular includes plural as per the provisions of the General Clauses Act. Therefore there is nothing wrong in the joint bidders being permitted to participate in the auction. The joint bidders 2 and 3 in this case cannot also be faulted with.
The Advocate Receiver has published notice in newspaper, Municipal Office, Village Office, property and also in the court notice board. Repeated publications were effected in the Malayala Manorama daily having wide circulation in the area. It cannot be any stretch of imagination be contended that there was no due publication of the auction sale.
The petitioners have a contention that the upset price was not mentioned in the sale proclamation issued by the Advocate Receiver. Even Order XXI Rule 66 of the CPC does not mandate the inclusion of upset price in the sale proclamation. The upset price was systematically reduced from 75,00,000/- (Rupees seventy five lakhs only) to 70,00,000/- (Rupees seventy lakhs only) and then to Rs. 55,00,000/- (Rupees fifty five lakhs only) by orders of court. The court was constrained to lower the upset price only because no bidder turned up for the auction.
The petitioners contend that another property situated near the KSRTC bus stand of extent 20 cents was sold for Rs. 2.5 crores. But the building in this property is pretty old. A portion of the property had been sold away even prior to the suit. Some of the portions of the property are also in the possession of tenants conducting business. The property cannot therefore be said to have been sold for a ridiculously low price. A faint contention was made on the basis of an affidavit filed by a stranger quoting a higher price. But the person who had quoted Rs. 75,00,000/- (Rupees seventy five lakhs only) in the affidavit subsequent to the event is not before this court. The Advocate Receiver had made earnest attempts to sell the property at a higher price on earlier occasions. The sale conducted eventually on 22-12-2009 of item No. 1 property cannot be faulted with on any ground.
The Original Petitions fail and are dismissed.