Yellappa vs Ramanna

S.N. Satyanarayana, J.—Petitioners herein are judgment debtor Nos. 1 and 2 in E.P. No. 27/2010 which is levied by respondent Nos. 1 and 2 herein. Respondent Nos. 3(a) to 3(e) and 4(a) to 4(d) are other judgment debtors in the aforesaid execution petition.

Admittedly, E.P. No. 27/2010 was levied pursuant to the judgment and decree passed in O.S. No. 128/1986 filed by respondent Nos. 1 and 2 for the relief of partition and separate possession in suit schedule properties. It is seen that respondent Nos. 1 and 2 are the children of original plaintiff - Nagaraj Parashuramappa, who sought 1/4th share in the suit schedule properties. The said suit came to be allowed by judgment and decree dated 30.06.1995. In the said suit original plaintiff - Nagaraj Parashuramappa and defendant Nos. 1 to 4 are awarded 1/6th share and 1/6th share of the father of the plaintiff & defendants'' share was again divided among all the children which was challenged by the petitioners herein by filing R.A. No. 22/2001 which came to be allowed partially in changing the share of plaintiff in the original suit as 45/252 share as against 1/6th share awarded in the Court below. That was again taken up in the second appeal by the petitioners herein in R.S.A. No. 1688/2005 which came to be dismissed by judgment dated 09.10.2006, thereby confirming the share of original plaintiff as 45/252 share and each of the defendants were also awarded share.

Subsequently, FDP proceedings was initiated, wherein final decree was drawn on 18.01.2010. It is seen that pursuant to the final decree, execution is levied and all the agricultural lands are divided by the parties in terms of the modified decree passed in R.A. No. 22/2001 on the file of Civil Judge (Sr. Dn.) Hangal. So far as the residential properties are concerned, namely V.P.C. No. 854 and V.P.C. No. 767 are concerned, the Court Commissioner was appointed to suggest the mode of dividing the same among the parties to the execution proceedings. The Commissioner submitted a report on 17.04.2008, wherein he stated that if the residential properties are divided in V.P.C. No. 854 of Akkialuru Village, Hangal Taluk, each party would get roughly around 4 feet x 56 feet which is impracticable to be used by any of the parties to the proceedings. Instead, it was suggested that the best possibility of dividing the same would be to fix the market value for the same and one of the parties to purchase the said property so that it can be put to effective use. Otherwise, the property cannot be used by any one of them, if they are allotted share measuring as low as 4 feet x 56 feet. The same view was also held in respect of property bearing V.P.C. No. 767 of Akkialuru Village.

It is seen that in this background, when delivery warrant was issued for securing vacant possession of the property from the judgment debtor Nos. 1 and 2 have raised two objections. The execution petition itself was challenged by them on flimsy grounds like all the parties to the decree have not signed the execution petition and vakalathnama is not signed by all the parties and only two of them cannot seek execution of the decree. Further, it was also contended that the name of the original plaintiff is not shown in the said execution petition. Therefore, the decree cannot be executed and they further raised objection regarding the execution warrant that was issued in respect of residential properties.

The Executing Court after considering the objections raised by Judgment Debtor Nos. 1 and 2, proceeded to issue warrant for taking possession of schedule ''A'' and ''B'' properties. It is admitted by the parties that the execution so far as ''A'' schedule property is concerned, it is effected and each one of them have taken their share. So far as ''B'' schedule property is concerned, it is the apprehension of Judgment Debtor Nos. 1 and 2, who are in possession of said properties for past 35 years would loose the same if it is put to auction, they would not be in a position to purchase the same. It is their contention that they should be permitted to purchase the property for the price to be fixed by the Court. Accordingly, Judgment Debtor Nos. 1 and 2 in the execution petition have come up in this petition seeking to quash the warrant issued in respect of ''B'' Schedule Property.

Assuming for a moment, if their prayer is allowed and the orders are quashed, the question that would arise for consideration before this Court is what would be the next course of action. As stated by the Commissioner in his report, the execution petition schedule ''B'' property namely residential property cannot be divided by metes and bounds. If it is so divided, the share which would come to the share of each one of them, would be so small, it would be impossible for any of them to put the said share to use for their personal occupation or for selling the same to the third parties. For the reason that the said share will be too small either for the purpose of development or for sale. In this writ petition, the prayer is only to quash the order of the Trial Court and it does not suggest what should be the next course of action so far as executing the decree is concerned.

In the present circumstances, this Court feel except putting the ''B'' schedule property for auction, no other step would serve the purpose of effectively implementing the decree. That is auctioning the ''B'' schedule property among the decree holder and judgment debtor at first instance who are the members of the same family. Hence, for the said purpose, all the parties were directed to produce the notified Sub Register market value for similar property in the locality so that, the same can be taken as base price. In response to that respondent Nos. 1 and 2 herein have filed a memo stating that the market value of item No. B(a) schedule property namely V.P.C. No. 854 is Rs. 13,00,000/- and so far as item No. B(b) schedule property namely V.P.C. No. 767 is Rs. 5,00,000/-. However, on behalf of the petitioners though they say that the said rate is exorbitant and that is not the market value, they have not furnished the market value.

Hence, this Court being left with no other option, direct the Executing Court to conduct open auction between the petitioners and respondent Nos. 1, 2, 3(a) to (e) and 4(a) to (d), keeping the base price of the property No. B(a) V.P.C. No. 854 as Rs. 10,00,000/- and the property No. B(b) i.e., V.P.C. No. 767 as Rs. 4,00,000/- in the auction to be conducted among the parties to E.P. No. 27/2010 pending on the file of the Civil Judge and JMFC, Hangal. It is also made clear that the Court below shall fix the date for auction between the parties within 15 days from the date of receiving a copy of this order and conduct the auction of the property and from out of the proceeds received, share of petitioners and respondents to be divided.

It is also made clear that in the said auction, the auction purchaser while depositing the bid amount, he need not deposit his share of the money which he would be getting in the said auction providing such concession to the purchaser, these petitions are disposed of.