Case Note & Summary
The petitioner, Mrs. Antonieta B. Fernandes, challenged the order dated 11/05/2017 passed by the Senior Civil Judge, Vasco, in Special Inventory Proceedings No. 2 of 2008. The impugned order disposed of the inventory proceedings based on a final chart of partition that was allegedly drawn from an illegal auction held on 09/01/2006. The petitioner contended that the auction was conducted by the Nazir of the Court, not by the Court itself, and that the Nazir acted as per the dictates of the Advocate for the respondent. Furthermore, the chart of partition was drawn by the Advocate for the respondent instead of the Court. The minutes of the auction opened with the expression 'as per order', but no such order existed. The Court found that the auction was vitiated and the chart was not drawn by the Court, rendering the entire proceedings illegal. The High Court allowed the writ petition, set aside the impugned order, and remanded the matter to the Senior Civil Judge for fresh disposal in accordance with law.
Headnote
A) Civil Procedure - Inventory Proceedings - Auction - The auction conducted by the Nazir of the Court without a prior court order and the final chart of partition drawn by the Advocate for the respondent instead of the Court were held to be illegal and vitiated the entire inventory proceedings. The Court set aside the order dated 11/05/2017 passed by the Senior Civil Judge, Vasco, and remanded the matter for fresh disposal in accordance with law. (Paras 4-5)
Issue of Consideration
Whether the auction held on 09/01/2006 and the subsequent final chart of partition in Special Inventory Proceedings No. 2 of 2008 were vitiated due to being conducted by the Nazir instead of the Court and the chart being drawn by the Advocate for the respondent instead of the Court.
Final Decision
The High Court allowed the writ petition, set aside the order dated 11/05/2017 passed by the Senior Civil Judge, Vasco, in Special Inventory Proceedings No. 2 of 2008, and remanded the matter to the Senior Civil Judge for fresh disposal in accordance with law.
Law Points
- Auction by Nazir without court order is illegal
- Partition chart must be drawn by court not by advocate
- Minutes of auction must reflect court order
- Inventory proceedings must follow due process
Case Details
2018 LawText (BOM) (07) 124
WRIT PETITION NO.566 OF 2017
Shri S.S. Kantak, Senior Advocate with Shri P. Talaulikar, Advocate for the petitioner; Shri E.O. Mendes, Advocate for the respondent
Mrs. Antonieta B. Fernandes
Smt. Ana Paula do Rego e Mendes
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Nature of Litigation
Writ petition challenging order in Special Inventory Proceedings
Remedy Sought
Petitioner sought to set aside the order dated 11/05/2017 passed by the Senior Civil Judge, Vasco, in Special Inventory Proceedings No. 2 of 2008
Filing Reason
The auction held on 09/01/2006 was conducted by the Nazir instead of the Court and the final chart of partition was drawn by the Advocate for the respondent instead of the Court
Previous Decisions
Senior Civil Judge, Vasco passed order dated 11/05/2017 disposing of Inventory Proceedings based on final chart of partition
Issues
Whether the auction held on 09/01/2006 was illegal as it was conducted by the Nazir without a court order
Whether the final chart of partition drawn by the Advocate for the respondent instead of the Court vitiated the inventory proceedings
Submissions/Arguments
Petitioner submitted that the auction was vitiated as it was conducted by the Nazir and not the Court, and the Nazir acted as per dictates of the Advocate for the respondent
Petitioner submitted that the chart of partition was drawn by the Advocate for the respondent instead of the Court
Ratio Decidendi
An auction conducted by the Nazir without a court order and a partition chart drawn by an advocate instead of the court are illegal and vitiate the entire inventory proceedings.
Judgment Excerpts
The petition takes exception to the order dated 11/05/2017 passed by the Senior Civil Judge, Vasco in the Special Inventory proceedings No. 2 of 2008 pursuant to which she disposed off the Inventory Proceedings based on the final chart of the partition and which in turn was based on an alleged illegal auction held on 09/01/2006.
Heard Shri S. Kantak, learned Senior Advocate on behalf of the petitioner who submitted that the auction itself was vitiated which was conducted by the Nazir of the Court and not the Court and the Nazir had done so as per the dictates of the Advocate for the respondent.
Procedural History
The Senior Civil Judge, Vasco passed order dated 11/05/2017 in Special Inventory Proceedings No. 2 of 2008 disposing of the proceedings based on a final chart of partition derived from an auction held on 09/01/2006. The petitioner challenged this order by filing Writ Petition No. 566 of 2017 before the High Court of Bombay at Goa.
