ESA No.4 of 2011 (O & M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ESA No.4 of 2011 (O & M) Date of Decision: 23.02.2011 Manjit Singh and another ……Appellants Versus Gurdev Kaur and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Hitesh Kaplish, Advocate for the appellants. L.N. MITTAL, J (ORAL) Defendants-Manjit Singh and Bishan Dass, having lost in both the Courts below, are in second appeal. Bhajan Ram-plaintiff (since deceased and represented by respondents as his legal representatives) filed suit for partition of the suit property. The said suit was decreed vide judgment dated 06.06.1994 and preliminary decree of partition was passed. Appeal preferred by defendants against the said judgment and preliminary decree dated 06.06.1994 was dismissed as withdrawn by the appellate Court vide order dated 27.04.2000. Thereupon the plaintiff filed application for passing of final decree of partition. Defendants by filing separate replies alleged that after passing of preliminary decree of partition and during pendency of first appeal against the same, the plaintiff surrendered all his rights in the suit property in favour of defendants vide two agreements to sell ESA No.4 of 2011 (O & M) - 2 – dated 10.11.1998 and, therefore, the plaintiff has no locus standi to seek final decree of partition. It was alleged that in view of said agreements, defendant No.1 withdrew his appeal against judgment and preliminary decree dated 06.06.1994 vide order dated 27.04.2000 of the appellate Court. Learned Additional Civil Judge (Senior Division), Phagwara vide impugned order dated 21.04.2010 dismissed the objections raised by the defendants against application for preparation of final decree. First appeal preferred by defendants against order dated 21.04.2010 of the trial Court has been dismissed by learned Additional District Judge, Kapurthala vide order dated 23.09.2010. Feeling aggrieved, defendants have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Defendants have set up two agreements dated 10.11.1998 allegedly executed by the plaintiff during pendency of first appeal against judgment and preliminary decree dated 06.06.1994. However, the said agreements were not set up in the said pending first appeal. On the other hand, defendant No.1 continued to pursue the said appeal for 17 months even after alleged execution of the agreements. Even thereafter, the said appeal was got dismissed as withdrawn without making any reference to agreements dated 10.11.1998. ESA No.4 of 2011 (O & M) - 3 – In addition to the aforesaid, defendants have already filed separate suits seeking specific performance of the alleged agreements dated 10.11.1998. Prima facie the said agreements are suspicious for the reasons recorded in the preceding paragraph. Consequently, on the basis of the alleged agreements, proceedings for passing of final decree of partition cannot be stalled much less dismissed. The plaintiff filed the suit in the year 1990. The suit was decreed vide judgment and preliminary decree dated 06.06.1994, but still the plaintiff could not get the fruits of the said decree. Even after dismissal of first appeal preferred by defendant No.1 against judgment and preliminary decree of partition, almost 11 years more have lapsed. Plaintiff has also since died in the interregnum. This case is thus classical case depicting how the litigation can be prolonged by one party to take undue advantage accruing on account of delay. More than 20 years have lapsed since the suit for partition was instituted. However, the property has not yet been partitioned. Learned counsel for the appellants referred to Order 21 Rule 29 of the Code of Civil Procedure (in short, CPC). However, the contention based on this provision is completely misconceived because this provision is applicable to execution proceedings whereas in the instant case, the plaintiff filed petition for passing of final decree of partition and has not yet filed any execution petition. Petition for passing of final decree is not part of execution proceedings, but it is part of trial of the suit itself being second stage of the suit after passing of preliminary decree. Consequently, Order ESA No.4 of 2011 (O & M) - 4 – 21 Rule 29 CPC is not applicable. Even otherwise, the appellants have miserably failed to make out a prima facie case for stay of the proceedings of passing of final decree because the alleged agreements set up by the appellants are prima facie suspicious for the reasons already recorded. Learned counsel for the appellants also contended that the Courts below have not recorded finding on issue No.1 relating to execution of agreements dated 10.11.1998. This contention also does not help the appellants because as already noticed hereinbefore, separate suits for specific performance of the alleged agreements filed by defendants/appellants herein are already pending and consequently, issue relating to execution of the said agreements would be adjudicated upon in those suits. For this reason, the trial Court has clarified in the concluding part of its impugned order dated 21.04.2010 that any observation made in this order shall have no effect on the rights of the defendants in the civil suit filed by them on the basis of alleged agreements dated 10.11.1998. For the reasons aforesaid, I find no merit in the instant second appeal. Orders of the Courts below are not shown to be illegal or perverse in any manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 23.02.2011 A.kaundal ESA No.4 of 2011 (O & M) - 5 –