1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- WRIT MISC APPLICATIO No. 112 of 2008 LRS OF SATYA PRAKASH & ORS. V/S SPECIAL JUDGE(NDPS),SRIGANGANAGAR & ORS. Mr. CHAITANYA GAHLOT, for the appellant / petitioner Mr. SL JAIN, for the respondent Date of Order : 2.4.2009 HON'BLE SHRI NP GUPTA,J. ORDER ----- This misc. application has been filed by the original defendants No.1/1 to 1/4, who were the petitioners in S.B.Civil Writ Petition No.4142/2005. It is prayed in this application that the respondent No.1, being the learned Court below be directed, that before paying the amount to the other respondents, the other respondents be ordered to execute/register appropriate document, as ordered by this Court in favour of the petitioner, regarding the transfer of the title of the property in question. It is alleged in the application that writ petition was filed before this Court on 14.7.2005 by the 2 petitioners challenging the order of the learned Court below dated 17.2.2005 passed in Original Suit No.22/2004, regarding partition of the parental property between the petitioner and the respondents No.2 to 6, which was ultimately disposed of vide order dated 23.8.2007, modifying the order dated 17.2.2005, according to which the highest bid of the property in question to the tune of Rs.2,11,00,000/- was accepted, as was given by the petitioner/applicant, and in compliance of the aforesaid order, the bid of the petitioner being highest was accepted, and 6 months' time was granted to her to deposit the amount, except the amount deposited as earnest money, as well as the amount of her share in the property. Accordingly, the petitioner deposited the amount on 21.2.2008, which deposit was affirmed by the Court below vide order dated 23.2.2008, and thereafter, the respondents No.2 and 3 surrendered the possession of the property, which was handed over to the petitioner, except one shop. The respondent requested the trial Court to pay the amount deposited. The petitioner on 18.8.2008, made an application stating that before receiving the amount, respondents No.2 to 6 may be directed to execute the sale deed in favour of the petitioner and get it registered before Sub-Registrar at the cost and expenses of the petitioner. Different replies to this application were submitted by different 3 sets of the defendants. Mainly it was contended, that the High Court has not passed any such order for registration, so it is not liable to be executed and registered. The learned Court below vide order dated 29.9.2008 dismissed the aforesaid application, on the ground, that no such order has been passed by the High Court. On these facts, the above prayer has been made, in the present misc. petition, contending, that the respondents are realizing the huge amount, and the petitioner in order to have a perfect title, does require the document. Notices of this application were issued, and except respondent No.3 nobody has appeared. Respondent No.2 has sent a reply by post, stating that he is ready to execute and register the appropriate document as ordered by this Court in favour of the petitioner regarding transfer of its title to the extent of his share, which reply is supported by affidavit-cum-undertaking. Respondent No.3 filed another reply, contending that the present application is not maintainable, as the order dated 29.9.2008 was passed on the application filed by the petitioner under Section 151 CPC, seeking direction to execute the sale deed, and that order can be challenged, 4 only by way of filing appropriate proceedings in a competent court of law, and cannot be challenged by way of moving the application like the present one, as all such orders are independent orders, and cannot be challenged in this fashion. It is also submitted in the mid of para 3, that the suit was for partition and a preliminary decree was passed, but final decree has not yet been passed, and that, in a suit for partition, final decree is necessary, and that, one co-sharer cannot make prayer by moving an application for issuance of a direction that other co- sharer be directed to execute the sale deed. It is also contended in para 4, that there was no direction of this High Court that after getting possession, the other co- sharers should execute the sale deed, and as the earlier writ petition was disposed of, it is for the trial Court, which shall proceed in the matter according to law, but in an application under Section 151, such prayer cannot be made. Then in para 6 it is contended, that in a suit for partition, the rights will be decided regarding property after passing a final decree, and when one of the co- sharers has given highest bid, and has already taken over possession, then the share, which comes to the answering respondent, that share should have been paid to him when the possession was taken, but to deprive his share to the respondent, the delaying tactics had been adopted. Thus, it is prayed that the application be dismissed. 5 Today both the learned counsel reiterated the same stand. I may recapitulate very briefly the facts, which are, that the suit for partition was filed in the trial Court, wherein on 7.5.94 a preliminary decree was passed, holding that the plaintiff and each of the defendants is entitled to 1/6th share in the property, mentioning therein that the parties are entitled to have their share separated. Obviously this is the preliminary decree, and as is admitted even by the respondent No.3 in his reply, as recapitulated above, that it is a preliminary decree, then in furtherance of the directions made in the preliminary decree, Commissioner was appointed, who inspected the site and made efforts for partition of the property by metes and bounds, which could not fructify, then ultimately the trial Court by order dated 17.2.2005, ordered the property to be put to auction. Obviously since it was to be put to public auction, the aforesaid writ was filed, wherein notices were issued and the operation of that order was stayed. Then record of the Court below was requisitioned, and then on 6.7.2007 all the learned counsel arrived at an agreement, that the property may be sold between the parties itself, though such an order was already made by the trial Court on 14.9.1995, but somehow on account of objection raised on behalf of some of the parties, that could not be materialized, however, since the parties agreed before me, 6 the order dated 6.7.2007 was made, directing the parties to submit their sealed bids, which were submitted, and the highest bid was ultimately accepted vide order dated 23.8.2007, and the writ petition was disposed of modifying the impugned order of the Court below, and directing the Executing Court to proceed with the matter further in accordance with the directions contained in the order, obviously in accordance with the law. In my view, obviously after the order dated 23.8.2007 a final decree is to be prepared by the trial Court, obviously in accordance with the agreement arrived at between the parties before this Court on 6.7.2007, which ultimately, culminated into the order dated 23.8.2007, whereby the property stood put to auction between the parties, and the petitioner became the highest bidder, the property stood auctioned in his favour, and the possession was accordingly to be handed over, and the amount was to be paid to the respective share-holders. Thus, the learned Court below is required to be directed to prepare a final decree in accordance with law, keeping in view the developments in the case, since the date of passing of the preliminary decree, till the date. Obviously that final decree confers title on the respective party as mentioned therein. 7 In my view, a separate document of sale deed is not required to be executed and registered by each, or any of the share-holders, whose share so stood transferred to the petitioner, as the final decree itself confers a perfect valid title on the person/s, in whose share the property falls. So far as the requirement of registration is concerned, by virtue of Section 17(1)(vi), it does not compulsorily require registration, however, under Section 18, such decree is optionally registerable. In that view of the matter, it is directed, that if the petitioner so desires, the final decree may be engrossed on requisite stamp duty, as may be required under law, and may be got registered in accordance with the provisions of Registration Act, at the cost and expenses of the petitioner. Coming to the question of maintainability of the application, as it has been raised by the petitioner, it would suffice to say, that as a matter of fact, and as a matter of law also, the trial Court was required to prepare a final decree, which it failed. The prayer made does not appear to have been properly made, inasmuch as, a prayer should have been made for preparation of final decree. 8 However, since the parties had already agreed on 6.7.2007, and the writ was decided in furtherance of that agreement, I do not stand advised to stand to ceremonies, and hyper- technicalities, so as to allow the litigation to continue, or to allow the petitioners to suffer, for want of legally valid perfect title in the property, despite the petitioner having acquired the title to the property under the orders of the court, and having parted with such a huge amount of crores of rupees. Therefore, I need not detain myself much on the aspect about maintainability of the application. The present misc. application is accordingly, disposed of, with the direction to the learned Court below as detailed above. ( N.P. GUPTA ),J. /tarun/