C.R. No. 7202 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 7202 of 2009 Date of Decision: 01.07.2010 Anand Sarup and others .... Petitioners Versus Rattan Bala ... Respondent CORAM: HON’BLE MR. JUSTICE ALOK SINGH Present :- Mr. Ramesh Sharma, Advocate for the petitioner Mr. Brijender Kaushik, Advocate for respondent No.1 Mr. P.S. Singla, Advocate for respondent No. 2 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? ALOK SINGH, J. (ORAL) The present petition is filed challenging the order of the Executing Court dated 4.11.2009 in Case No. 85 of 2008 passed by Civil Judge (Sr. Division) Panchkula. The brief facts of the present case are that present petitioners/plaintiffs filed suit for partition against Rattan Bala – respondent No. 1 herein. The suit was decreed by the Civil Judge (Jr. Division) Panchkula vide judgment dated 29.11.1997 thereby declaring half share of the plaintiffs (petitioners herein) in the property in question. Accordingly, preliminary decree was prepared. Thereafter, plaintiffs (petitioners herein) initiated proceedings before the trial Court for preparation of the final decree which was registered C.R. No. 7202 of 2009 2 as Case No. 85 of 2008. In the proceedings for preparation of final decree, respondent No. 2 - Sneh Lata preferred an objection contending that judgment debtor – Rattan Bala had already transferred 2 Biswas of land in favour of Manish who was son of the objector. It was further contended by Sneh Lata that after the death of Manish, share of Manish was inherited by Sneh Lata. It is further alleged by Sneh Lata that she has filed Civil Suit challenging the preliminary decree dated 29.11.1997 on the ground neither Manish nor she was impleaded in the suit and decree was obtained fraudulently in their absence while Sneh Lata is having share in the property. Learned Executing Court has stayed the proceedings of preparation of final decree vide impugned order. Learned counsel for the petitioners vehemently argued that undisputedly initially plaintiffs/petitioners and respondent No. 1/ defendant were the joint owner having equal share of the property in dispute. Any share transferred by defendant/respondent No. 1 in favour of Manish now owned by Sneh Lata is qua the share of respondent No. 1/defendant. He further contends that Rattan Bala – respondent No. 1 had absolutely no authority to transfer share of the plaintiffs/petitioners, nor she has transferred any share of the plaintiffs/petitioners. Any transfer by respondent No. 1 in favour of Manish now owned by respondent No. 2 would be qua the share of Rattan Bala – respondent No. 1. Hence, there is no question of staying the execution proceedings for preparation of final decree on the grounds of filing of the suit by Sneh Lata challenging the preliminary decree dated 29.11.1997. On the other hand, learned counsel for respondent No. 2 C.R. No. 7202 of 2009 3 – Sneh Lata argued that the movement it is admitted that property has not been partitioned as yet and respondent No. 1 had transferred some share in property in dispute in favour of Manish which is now owned by respondent No. 2, respondent No. 2 is entitled to have separate lot in the property in dispute to the extent of her share. He submits that although respondent No. 2 is having share qua the share of respondent No. 1, however, since property has not been partitioned as yet, hence she has every right to be heard in the proceedings for final decree, claiming her share in the property in dispute. Heard learned counsel for the parties and perused the records. Undisputedly, plaintiffs/petitioners are having ½ share and respondent No. 1/defendant is having ½ equal share in the property in dispute and respondent No. 2 is claiming her share in the property in question qua respondent No. 1/defendant. In any case respondent No. 2 herein would be entitled for her separate share qua the share of respondent No. 1 which she claims to have acquired from respondent No. 1 through Manish. Proceedings for final decree ought not to have been stayed. In my opinion, second suit filed by respondent No. 2 is nothing except the abuse of process of law. Instead of challenging the preliminary decree, respondent No. 2 herein could have initiated appropriate legal action claiming her separate share qua the share of respondent No. 1 In view of the above observations, the present petition deserves to be allowed. C.R. No. 7202 of 2009 4 The present petition is allowed. Order impugned is set aside. Learned Court below is directed to conclude the proceedings of preparation of final decree without any further delay in accordance with law. (ALOK SINGH) 01.07.2010 JUDGE reena