Order XXI Rule 88 CPC - Bid of Co-Sharer to Have Preference
Order XXI Rule 88 of the Code of Civil Procedure, 1908 gives a co-sharer preference where equal bids are made for a share in undivided immovable property at a court auction in execution of a decree.
Text of Order XXI Rule 88 CPC
Where the property sold is a share of undivided immovable property and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.
The provision is reproduced with the obvious grammatical correction "of whom" for "or whom" appearing in some published reproductions. Consult the official statutory text and applicable local amendments.
Meaning and purpose of Rule 88
The rule concerns a judicial sale of a share in immovable property that has not been divided among its co-owners. A co-sharer is a person who already holds an undivided ownership share in the same property. The rule resolves an equal-bid situation in favour of that co-sharer, helping avoid unnecessary entry of a stranger into undivided ownership.
Conditions for co-sharer preference
- The property being auctioned must be a share of undivided immovable property.
- The auction must be in the context of execution proceedings under the CPC.
- At least two persons must bid the same amount for the share or a lot.
- One of the equal bidders must be a co-sharer of the property.
- The co-sharer's bid is then treated as the preferred bid under Rule 88, subject to the applicable auction procedure.
Example of how the preference works
Suppose an undivided one-third share in land is auctioned by an executing court. A co-owner and an outside bidder each offer Rs. 10 lakh. Rule 88 treats the equal bid as the co-owner's bid. If the outside bidder instead offers Rs. 11 lakh and the co-owner offers only Rs. 10 lakh, Rule 88 alone does not give the co-owner the property at the lower amount.
Related CPC provisions
Order XXI Rules 64 to 69 - Sale procedure
These rules deal with the court's power to sell attached property, the conduct of sale, sale proclamations, timing and adjournment. The co-sharer's preference is applied within the lawful sale procedure, not in place of it.
Order XXI Rule 84 - Initial deposit
Ordinarily, a purchaser of immovable property must immediately deposit 25 percent of the purchase money after being declared purchaser, subject to the exception in the rule for an eligible decree-holder purchaser.
Order XXI Rule 85 - Balance payment
The purchaser must pay the full purchase money into court before the court closes on the fifteenth day from the sale, with any applicable set-off under Rule 72.
Order XXI Rules 89 to 92 - Setting aside or confirming sale
These provisions address applications to set aside execution sales and the circumstances in which a sale becomes absolute. A co-sharer preference does not remove these procedural safeguards.
How a co-sharer can claim preference
A participating co-sharer should make the existing ownership interest known to the auction officer or executing court and provide relevant title, inheritance or other ownership records. Where equal bids arise, the co-sharer may request that Rule 88 be applied and that the relevant facts be recorded in the sale proceedings. Any dispute should be raised promptly before the executing court, taking account of the stage of the auction and applicable rules.
Important limitations
Rule 88 is a narrow tie-bid preference, not an unconditional right of first refusal. It applies to a share in undivided immovable property and does not by itself govern every partition sale, private transfer or sale of a fully divided parcel. State-specific or High Court amendments and auction conditions should be checked where applicable.
Official legal source
Read the Code of Civil Procedure, 1908 (official India Code PDF) and the India Code legislation record for the statutory framework and related rules.
This article provides general legal information. Court practice and local amendments may affect the procedure in an individual case.