Ex.P No.2 of 2009 alongwith OMP No.339 of 2011. 19.10.2011. Present: Sh.Ajay Kumar, counsel for the Decree Holders. Sh.Surinder Sharma, counsel for the respondent. In a suit filed by Smt.Kaushlaya Butail and her children, she had prayed for a decree of partition of the suit property by metes and bounds and for rendition of accounts. A decree was passed against Sh.Madan Lal Butail. This decree was challenged in OSA No.32 of 2000 and it was held that the plaintiffs and defendant No.1 are entitled to the suit property in equal shares as class-I heirs under the Hindu Succession Act. A preliminary decree for rendition of accounts was also granted. Thereafter, by means of this Execution Petition, the Plaintiffs Smt.Kaushalya Butail, Anil Butail and Dr.Nirupma Rohatgi prayed for preparation of the final decree. During these proceedings a Local Commissioner was appointed who submitted his report. The defendants filed objections to the said report and thereafter the parties have arrived at a compromise with regard to the preparation of the final decree. The terms of the compromise are contained in OMP No.339 of 2011 which is exhibited as Ext.C-1. The said application is signed by plaintiffs Smt.Kaushlaya Butail, Dr.Nirupma Rohatgi and also by the Defendant. Sh.Anil Butail the other legal heir entitled to the property in terms of the compromise is present in court and his statement has been separately recorded. He stated on oath that he also agrees with the terms of the compromise as reflected in application being OMP No.339 of 2011 which has been exhibited as Ext.C-1. The affidavits of Smt.Kaushalya Butail, Madan Lal Butail and Dr.Nirupma Rohatgi have been filed alongwith the application. Statements of Sh.Anil Butail, Madan Lal Butail and Sh.Ajay Kumar, Advocate have been recorded in the Court. Sh.Ajay Kumar, Advocate has made statement on behalf of Dr.Nirupma Rohatgi and Smt.Kaushlaya Butail. In view of the compromise arrived at between the parties a final decree is passed in terms of the averments made in OMP No.339 of 2011 especially those contained in paras 4 to 8 which read as follows: “4.That in terms of the compromise arrived at between the parties, the property bearing No.S-340, Greater Kailash Party I, New Delhi has been agreed to be partitioned in the manner that the defendant, Shri Madan Lal Butail, shall be the exclusive owner of the entire ground floor of the said property and the plaintiff/DH applicants shall be the joint owners of the entire upper floors of the said building including all roof rights above grounds floor. Both the parties shall have common approach to their respective portions of the building from the main road, that is, existing approach. The plaintiff/applicants will have parking rights. In the event of reconstruction of the said building on terms to be mutually settled between the plaintiff and the defendant, the defendant JD will be entitled to the ground floor and basement below it and the plaintiff applicants to entire upper floors above the ground floor as may be permissible to be reconstructed under the building bye laws prevalent at the relevant time. Municipal Taxes or other Government dues payable with respect to the said property shall be paid by the parties with respect to the portion allotted to them/fallen to their respective shares. 5. That so far as the amount lying in the account No.1006245541 of late Shri Roshan Lal Butail with Central Bank of India, No.67, Main Market, M Block, Greater Kailash Part1, New Delhi, amounting to Rs.5,19,714.37 paisa is concerned, it is mutually agreed that out of this amount a sum of Rs.3,71,224.55 be paid to the account of Plaintiff No.1, Smt.Kaushalaya Butail by remitting the same to her savings Bank Account No.4830 with the Indian Overseas Bank, The Mall, Shimla and the remaining Rs.1,48,489.82 paisa be remitted to the account of Shri Madan Lal Butail in his savings account No.8907 with the Central Bank of India, 67, Main Market, M Block, Greater Kailash Part 1, New Delhi. Any interest over and above these amounts will be distributed equally to both parties. Therefore, necessary directions be passed for distribution of the said money in accordance with this compromise. The plaintiffs DH will be entitled to 71.5% share of the amount due from the Post Master in respect of the amount of rent for New Butail Building, Lower Bazaar Shimla, lying with the Post Master and the defendant shall be entitled to 28.5% share of the amount due from the Post Master in respect of the amount of rent for New Butail Building lying with the Post Master. The plaintiff No.1 and defendant jointly will be entitled to obtain vacant possession of the old post office from the concerned authorities. After taking possession the premises would be under joint lock and key of the parties and or shall be kept vacant and shall not be put to any use unless mutually agreed in writing otherwise. However, by mutual consent the said property may be given on rent then both the plaintiffs and the defendant shall be entitled to share of rent in the ratio of 66% to the plaintiffs and 34% to the defendant respectively. 6. That the parties have mutually agreed that so far as the properties situated at village Pragpur, District Kangra are concerned, the parties do not want to partition the same and keep the same joint. However, it is agreed that the parties shall dispose of/sell jointly the said properties at Pragpur at the earliest possible time convenient to the parties and the sale proceeds thereof shall be shared in the ratio of 71.5% by the Plaintiffs and 28.5% by the defendant Sh.Madan Lal. 7. That so far as the Shimla property, namely, New Butail Building, Lower Bazaar, Shimla is concerned, it is agreed between the parties that it shall not be partitioned or divided by metes and bounds. The parties shall jointly take steps for reaching agreement to sell the property to a builder for the purpose of reconstruction. The builder shall be required to take the appropriate steps for vacation of the property by the existing tenants. After vacation of the building, it will be reconstructed by the Builder. It is further agreed that in the top floor of the said building two residential flats shall be constructed an one flat having equal area shall be allotted to the plaintiffs/applicants and the defendant respectively, that is, on the reconstruction of the building plaintiffs shall be jointly entitled to one flat and the defendant also to one flat having an equal area. Thus in the top floor the plaintiffs shall have 50% share and the defendant will also have 50% share. From the proceeds of the sale, the Plaintiffs DH will be entitled to 66.7% of the funds and the defendant 33.3%. This compromise will be a part and parcel of the final decree. This is further acknowledged by the parties in this three storied building viz., New Butail Building, Lower Bazaar Shimla one set on the top floor adjacent to the Post Office portion and two residential sets in the ground floor are in possession of Shri Madan Lal Butail, Defendant, and in the first floor two residential sets are in occupation and possession of Smt.Kaushalya and/or possessed by them will not be let further to anyone but vacant possession thereof shall be made available to the builder so as to negotiate and fetch maximum sale price of the building. 8. The Plaintiffs shall be owners of 2/3rd share in the shop presently in the tenancy of Messrs Sansar Tailor and the defendant shall have 1/3rd share in the same.” A final decree sheet be prepared in terms of this compromise. The terms stated in paras 4 to 8 shall be reflected in the decree sheet and the application Ext.C-1 alongwith affidavits and the statements of Sh.Anil Butail, Madan Lal Butail and Sh.Ajay Kumar, Advocate recorded today also form part of the decree. Though the decree has been passed in the aforesaid terms, it is further clarified that in case the amount of Rs.5,19,714.37 is deposited by the Central Bank of India alongwith interest the same shall be apportioned in the following terms: Smt.Kaushalaya Butail 71.5% Sh.Madan Lal Butail 28.5% As soon as this amount is received from the Central Bank of India, the Registry shall ensure that the same shall be remitted to Smt.Kaushalaya Butail and Madan Lal Butail in the ratio of 71.5% and 28.5% respectively to their bank accounts as reflected in para 5 of OMP No.339 of 2011. The execution petition and all miscellaneous applications are disposed of in the aforesaid terms. No costs. October 19, 2011 ( Deepak Gupta ), J. PV Ex. Petition No.2 of 2009. Statement of Anil Butail son of late Sh.Roshan Lal Butail, age 65 years, R/o 1427, 80th Avenue, North East, Medima, Washington, USA-98039. On S.A. 19.10.2011. I am aware of the litigation filed by me and my mother Smt.Kashaulya Butail and my sister Dr.Nirupma Rohatgi against my step brother Sh.Madan Lal Butail. We have compromised the matter between us with regard to the preparation of the final decree and have settled between ourselves the manner in which the property of the deceased Sh.Roshan Lal Butail has to be divided and partitioned by metes and bounds. I have read the application being OMP No.339 of 2011 and accept the averments made therein as true and correct. A final decree be passed in terms of the said OMP No.339 of 2011 Ext.C-1. RO&AC ( Deepak Gupta ), J. 19.10.2011. Ex.Petition No.2 of 2009. Statement of Sh.Ajay Kumar, Advocate, H.P. High Court, Shimla, counsel for the petitioners Decree Holders, Without Oath 19.10.2011. Stated that the OMP No.339 of 2011 has been signed by Smt.Kaushlaya Butail and Dr.Nirupma Rohatgi, plaintiffs Decree Holders, in my presence and I identify their signatures on the application and the affidavits filed in support of the application. I have instructions to make statement on their behalf that a final decree be passed in terms of the averments made in OMP No.339 of 2011 filed in the aforesaid execution petition. RO&AC ( Deepak Gupta ), J. 19.10.2011. Ex.Petition No.2 of 2009. Statement of Madan Lal Butail son of late Sh.Roshan Lal Butail, age 72 years, R/o 5/A, The Mall, Shimla, Himachal Pradesh. On S.A. 19.10.2011. That OMP No.339 of 2011 has been drafted at my instance. I have gone through the averments made therein and admit the same to be correct. I have also filed an affidavit in support of the said application which is signed by me. A final decree be passed in terms of the compromise arrived at between the parties and recorded in OMP No.339 of 2011,Ext.C-1. RO&AC ( Deepak Gupta ), J. 19.10.2011.