Delhi High Court

Bishwajeet Singh & Ors. vs Bikramjit Singh Through Lts. & Ors. on 15 February, 2023

Author:
Sanjeev Narula

Bench:
Sanjeev Narula

2023/DHC/001096

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 21st November, 2022
Pronounced on: 15th February, 2023

+ EX.P. 118/2019 & EX.APPLs.(OS) 722/2020, 870/2020, 170/2021
BISHWAJEET SINGH & ORS. ..... Decree Holders
Through: Mr. Arvind K. Nigam, Senior
Advocate with Mr. Jai Sahai Endlaw,
Advocate for DH-1 and Mr. Akhil
Sachhar, Advocate for DHs 2 & 3.
versus

BIKRAMJIT SINGH THROUGH LRS. & ORS.
..... Judgment Debtors
Through: Mr. Nikhil Mehra, Mr. Ramnesh
Kumar Sahu and Mr. Sangram Vijay
Singh, Advocates for JD-2.
Mr. Kirtiman Singh and Ms. Vidhi
Jain, Advocates for JD-3.
Mr. Ritin Rai, Senior Advocate with
Mr. Aabhas Kshetarpal, Ms. Aditi
Laxman and Ms. Aditi Rao, Advocates
for JD-4.
JD-1 (deceased) is represented
through JDs 2 to 4.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA

JUDGMENT

SANJEEV NARULA, J.

THE CONTROVERSY ON MAINTAINABILITY

1. The present execution proceedings under
Order 21 Rule 11 of CPC

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arise from final judgment and decree1 dated 01st October, 2007 [hereinafter,
'Decree'] deciding a suit for partition of property bearing No. 54, Friends
Colony East, New Delhi-110065, admeasuring 3860 sq. yards [hereinafter,
'suit property']. As per the Decree, the suit property has to be auctioned and
sale proceeds have to be apportioned among the parties, as per their respective
shares.

2. For convenience, the parties to this execution petition and their
respective shares are noted below:

Party in Name/Description Party in civil Share of
execution proceeding suit
proceeding property
Decree Holder Bishwajeet Singh Plaintiff in civil suit. 1/4th share
No. 1["DH-1"]
Decree Holder Legal Representatives Mrs. Vijay Kumari 1/4th share
No. 2-3 [hereinafter, 'LRs'] of was Defendant No. 3
Late Mrs. Vijay Kumari, elder in civil suit.
sister of DH-1.
Judgment Late Mr. Bikramjit Singh, Mr. Bikramjit Singh
Debtor No. 1 elder brother of DH-1, now was Defendant No. 1
represented through his LRs. in civil suit. 1/4th share
Judgment LRs of JD-1. Not a party
Debtors No. 2-4
Not a party Mrs. Madhuri Singh, (since Mr. Inderjit Singh 1/4th share,
deceased) wife/LR of Late was Defendant No. 2 which has
Mr. Inderjit Singh, eldest in civil suit. been
brother of DH-1. Qua her ordered to
succession, testamentary be
proceedings are on-going. secured.2
The formal decree has not been drawn up as yet, thus last paragraph of the judgment is treated as a decree,
in light of the judgment of the Supreme Court in
Sir Sobha Singh and Sons Pvt. Ltd. v. Shashi Mohan Kapur

(deceased through L.R.) in C.A. No. 534/2019. The reference to the word "decree" in the judgment is to be
read accordingly.
In FAO (OS) 514/2010, a dispute was raised by Mrs. Madhuri Singh with regard to her 25% share in the
suit premises (arising out of the share of her deceased husband Late Mr. Inderjit Singh). Therein, vide order
dated 21st April 2017, the Bench had ordered that 25% of the sale proceeds received upon auctioning the suit
property, after deducting the expenses incurred, are to be secured in the execution proceedings, disbursal
whereof shall be subject to the final decision in FAO (OS) 514/2010. The said appeal is still pending.

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3. Contrary to the mandate of the Decree, Decree Holders [hereinafter
collectively, 'DHs'], seek immediate and exclusive physical possession and
partition of their 50% share (in the freehold property) by metes and bounds,
contending that the Decree stands modified vide order dated 05th November,
2019 passed by the Division Bench [hereinafter, 'DB Order'].3 The prayer
clause for seeking court's assistance in executing the decree, reads as follows:

"A. Grant immediate exclusive physical possession of 50% of the
superstructure of the suit property to the applicants;
B. Partition the Suit Property by metes and bounds into two equal halves."

4. Judgment Debtors [hereinafter, collectively, 'JDs'], in opposition, raise
two primary protests by arguing that: (i) granting of possession and partition
through metes and bounds, goes beyond the scope of
Order XXI Rule 11 of
the Code of Civil Procedure
, 1908 [hereinafter, '
CPC
']; and (ii) the Decree,
which was passed with the consent of all parties, only permits sale of suit
property, and cannot be altered without mutual consent.

5. Conflicting opinions expressed by the parties have given rise to two
critical questions: (a) Does a decree for sale by auction preclude the executing
court from directing a partition of the suit property by metes and bounds? (b)
Has the Division Bench modified the final judgment and decree in ancillary
appeal proceedings related to an interim order?

CONTENTIONS OF PARTIES

6. Mr. Arvind K. Nigam, Senior Counsel for DHs, made the following
submissions:

i. Efforts were repeatedly made to sell the property in question between
In FAO(OS) 514/2010 titled
Madhuri Singh v. Bikramjit Singh and Ors
.

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the year 2000-2015, including attempts to find buyers outside of court,
but to no avail.

ii. JDs as well as DHs had submitted their respective site plans for
partition. Although earlier there was disagreement amongst parties,
however, DH is now willing to accept either half of the suit property,
i.e., side A or side B, each measuring 1930 sq. yds, as per the suit
property sharing arrangement.

iii. Under the Master Plan for Delhi 2021 [hereinafter, 'MPD 2021'], each
side, holding 1930 sq. yards of land, is entitled to 100 Floor Area Ratio
[hereinafter, 'FAR'], 25% ground coverage and upto 9 permissible
dwelling units. This will enable DHs to retain their land, while the other
half can be auctioned, to enable JDs to realize cash, as they have prayed
for. The 25% share of the branch of Mr. Inderjit Singh (who was earlier
represented through his wife - Ms. Madhuri Singh, since deceased), is
to be retained in the Court, as she died issueless, and testamentary
proceedings are ongoing. DH offered JDs ownership of other half of
the suit property along with full cooperation to retain, build, further
partition, or sell their land.

iv. Partition by metes and bounds is the norm and not an exception. Sale
of the suit property, as per provisions of the
Partition Act, 1893
, is only
ordered if it is found that the suit property is not physically divisible.
Given the peculiar circumstances, viz. vast size of the suit property, its
unequivocal divisibility, and the 34-year-old litigation, there are
compelling enough reasons for this Court to exercise its power under

Section 9
of the Partition Act, 1893 and order part-sale and part-
partition of the suit property.

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v. There are no practical impediments to the partitioning of the suit
property. Modifications to the superstructure and additional
construction (built-up area being currently significantly less than
permissible FAR) are permitted in a partition, to make the already huge
suit property further habitable to the parties, thus negating the argument
that it is a single unit use, incapable of partition.

vi. Partition of properties is, in substance, partition of FAR. Since the suit
property's FAR can be divided equally, there are no practical or legal
barriers to its partition. Reliance was placed on judgments of Supreme
Court in
Sharda Nath v. Delhi Administration,4
and of this Court in

M.G. Ramachandran and Anr. v. MCD,5
which was upheld by the
Division Bench.6 It was observed that the right to demarcate and
construct upon property, without NOC from the other side, is
permissible, and authorities will have no objection if the owner of a
portion of a property, files an application for building plans individually
or jointly, subject to FAR allocation. Parties shall also be entitled to
apply for separate mutation, utility connections and other civic
amenities. Here, as both sides would have access to municipal roads in
the front and the back, as well as separate entrances to the
superstructure, no hindrance is envisaged.

vii. Almost all properties in Friends Colony East stand partitioned. There
is an active market for the sale of partitioned properties. The suit
property can also be partitioned and constructed upon, with distinct and
Order dated 17th October 2019 in Civil Appeal No. 1161 of 2009; MANU/SCOR/37305/19.
2013 SCC OnLine Del 2224.
M.G. Ramachandran v. Municipal Corporation of Delhi
, 2014 SCC OnLine Del 1325.

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tradable titles with separate FARs. On the contrary, there is no record,
in the recent past, of any sale of property in Friends Colony East as
large as the suit property. In real estate sector, it is well understood that
all things being equal, smaller plots of divided properties sell for higher
prices per square yard, are significantly easier to sell, and have a more
liquid market.

7. Per contra, Mr. Ritin Rai, Senior Advocate, and Mr. Nikhil Mehra, Mr.
Kirtiman Singh and Mr. Aabhas Kshetarpal, Advocates for the JDs, oppose
the reliefs, by contending that: (i) the DB Order does not modify the final
consent Decree; (ii) Executing court cannot go beyond terms of Decree;7 (iii)
No attempts have been made to execute the Decree since 2009; and, (iv) The
appropriate course for the Court would be to order public auction of the suit
property. Additionally, JD-4 has also prayed for directions to occupants to
vacate the suit property in order to facilitate its sale by public auction.

8. In response, DHs have submitted as follows:

i. DB Order dated 05th November, 2019 grants liberty to executing court
to look at all possibilities for executing the Decree, which is not limited
to the sale of property as originally ordered under the Decree, and hence,
this amounts to modification of the final consent Decree and should be
treated as such.

ii. JDs resisted all attempts to put DH in possession of 50% of the suit
property, despite the shares having been declared as far back as 9 th
December, 2019 and DHs are being deprived of the right to enjoy their
legitimate share in the suit property.
Reliance was placed on
Deepa Bhargava and Another v. Mahesh Bhargava and Ors.
, (
2009) 2 SCC 294,
and Sarup Singh v. Daryodhan Singh
, 1971 SCC OnLine Del 316.

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iii. The Court has never ruled that larger freehold property was incapable of
being partitioned into two halves. DHs have always maintained that the
suit property can be partitioned into two halves.8
iv. Reliance by the JDs, on an earlier Report of the Local Commissioner
[hereinafter, 'LC'] dated 15th December, 1999 to contend that the suit
property cannot be partitioned into two halves, is misplaced. LC's
mandate was to determine whether the suit property was divisible into
four independent living units, not two. The predecessors-in-interest of
the JDs had filed their objection to the said report, and asserted that the
suit property was indeed divisible - not only into four units but also into
two units, with DH-1 holding 25% share. Earlier partition attempts did
not fructify because DH and JD had submitted separate site plans, and
both parties wanted the same side. Now, DH is willing to accept either
side under either of the site plans. The filing of site plans to partition the
suit property into two halves, by both JDs and DHs, is itself testimony to
the fact that the suit property is divisible into two halves.
v. JDs' share does not meet the threshold of one moiety, as prescribed under

Section 2
of the Partition Act, 1893, to put the suit property for sale.9
They dictated their terms to DHs who are together entitled to 50% share,
Reliance is placed on order dated 26th November, 2015 passed by Division Bench in FAO (OS) 514/2010
titled
Madhuri Singh v. Bikramjit Singh & Ors
.
Section 2
- Power to court to order sale instead of division in partition suits.--

Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a
decree for partition might have been made, it appears to the court that, by reason of the nature of
the property to which the suit relates, or of the number of the shareholders therein, or of any other
special circumstance, a division of the property cannot reasonably or conveniently be made, and
that a sale of the property and distribution of the proceeds would be more beneficial for all the
shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested
individually or collectively to the extent of one moiety or upwards, direct a sale of the property and
a distribution of the proceeds.

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that is, one moiety of the suit property. In fact, JDs have misrepresented
that they are entitled to 50% share in the suit property under the decree,
when in fact, the Division Bench, vide order dated 09th November, 2017
in FAO(OS) 514/2010, had clarified that late Mrs. Madhuri Singh's 25%
share (which JDs claim) shall be secured by depositing proceeds in the
Court. As LRs of late Mr. Bikramjit Singh, JDs 2-4 are legally one party,
together entitled to 25% share of the total, i.e., 8.33% share individually¸
as noted in the Order dated 21st April, 2017.

vi. DHs' claim on late Mrs. Madhuri Singh's share does not prevent them
from seeking 50% exclusive possession of DHs' own share, as presently
determined. However, if found entitled to a greater share in the
succession proceedings, DHs shall limit their claim only to the monetary
value of such excess share, whenever the other half is sold.
vii. As regards JD's objection that Decree has not been modified by way of
the DB Order, it was argued that this Court must take into account the
ruling which was made by the appellate court while exercising its
jurisdiction over the same decree for which execution has being sought
in the current case. Any other interpretation would be in the teeth of

Order XXI Rule 28 of CPC
.10 The Division Bench was seized with the
subject matter for seven years. In the proceedings before them, the Bench
examined not only the interlocutory order, but in fact, vide order dated
21st April, 2017 disposed of the suit itself, clarifying that the parties are
entitled to proceed with execution of the judgment and decree.
Subsequently, the Bench modified the Decree and empowered the
Reliance was placed upon
Bhavan Vaja v. Solanki Hanuji Khodaji Mansang
, (1973) 2 SCC 40.

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executing court to explore all possibilities for securing to the parties their
respective shares, not limited to the sale of the suit property by way of
public auction.

viii. On the objection regarding limitations of the executing court, it was
contended that executing court is well within its power to enforce and
execute a decree in any manner that the nature of relief requires.
Order
XXI Rule 28 of CPC
stipulates that when an appellate court makes a
decision modifying, confirming, or reversing a final decree, the order is
considered as part of the proceedings in the original suit.11

ANALYSIS

9. The protracted and intricate litigation between parties, which began
with the filing of partition suit CS(OS) 3235/1988 and remains ongoing, is
without a doubt, disconcerting. Twenty-five years have elapsed since the
preliminary decree was issued on 09th December, 1997, and a further fifteen
years have passed since the final Decree was issued on 1st October, 2007. The
declaration of shares is the only aspect that has been resolved [being 1/4th to
each sibling]; however, the parties remain at logger-heads qua the method and
manner of division.

10. Mr. Nigam has explained that the youngest of the siblings, DH-1, now
a septuagenarian, is the last surviving member of the original parties in the
civil suit. Having reached an advanced stage of life, he desires to see an end
to this 34-year-long tussle. He expresses a keen desire to re-enter his parental
Reliance is placed upon:
Rangubai Kom Shankar Jagtap v. Sunderabai Bhratar Sakharam Jedhe
, (1965)
3 SCR 211.

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dwelling home, which (undisputedly) was purchased by their mother in 1958.
For him, the relief of possession and partition is immediate, in contrast to a
sale order. In his view, sale of the property is unfair and distressing, depriving
him of the right to inhabit the dwelling home that has enormous sentimental
attachment. The history of legal disputes between the parties has also led DH-
1 to believe that sale process could be a long and arduous journey with an
uncertain outcome. He has underscored the obstacles in selling a freehold
property as big as the suit property, which seems to be an unprecedented case
in Friends Colony. The thought of finding a new home, even if the sale of the
property goes through, is a daunting prospect for him at his advanced age.
Therefore, given the possibility of suit property being partitioned, he
considers that selling the same may not be best course of action.

11. Keeping all this in mind, and with the objective to bring an end to the
conflict, this Court has heard the instant matter extensively over the course of
multiple hearings to enable the parties to realize their respective share in the
suit property.

12. The above reasons highlighted by Mr. Nigam bring to light compelling
urgency of the Plaintiff/DH-1 in pressing for a final resolution to the disputes
between parties. However, being a court of law, this Executing Court cannot
take a decision based solely on such emotional arguments. While equity can
be a relevant factor in ensuring fair and just implementation of a Court's
decision in enforcing a decree, but if the judgment is precisely worded, equity
has limited maneuverability. Moreover, in cases where a decree stems from a
partition suit and the parties are not on equal footing, it is crucial to keep in
mind that the final judgment may not always be 'balanced' or 'just' from the
viewpoint of all parties involved. In a partition suit, the term 'decree holder'

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and 'judgment debtor' are not well-defined, even though a decree has a
binding effect on all parties involved. The plaintiff to a partition suit is not
wholly a dominus litis, and a 'judgment debtor' to a decree arising therefrom
is thus not necessarily the party against whom an unfavourable decision was
rendered. For this reason, this Executing Court cannot take a view that
prioritizes only the interests of DHs herein, who are likely to be the pressing
litigant only due to his swiftness in pressing for execution. Further, even if
one were to somehow ignore the collective rights of the JDs herein, and
proceed on the assumption that partitioning of the suit property is an equitable
relief, yet, this Court finds no room to grant such a relief in the absence of
consensus between the parties, as the Decree is for sale thereof.

13. Basis the preceding discussion, in order to ascertain the viability of
granting the relief sought, let us scrutinize the applicable provisions to acquire
a more comprehensive understanding of the executing court's jurisdiction.

Relevant Sections

14.
Section 2(2)
of the CPC provides the following definition of the term
"decree":

'"decree" means the formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and
may be either preliminary or final. It shall be deemed to include the rejection
of a plaint and the determination of any question within Section 144, but shall
not include--

(a) any adjudication from which an appeal lies as an appeal from an
order, or

(b) any order of dismissal for default
Explanation.--A decree is preliminary when further proceedings have to
be taken before the suit can be completely disposed of. It is final when such
adjudication completely disposes of the suit. It may be partly preliminary and
partly final;.".

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15.
Section 47
of CPC stipulates that all questions arising between the
parties to suit, in which the decree was passed, shall be determined by the
Court executing the decree. It reads as under:

"47. Questions to be determined by the Court executing decree.--(1) All questions arising
between the parties to the suit in which the decree was passed, or their representatives,
and relating to the execution, discharge or satisfaction of the decree, shall be determined
by the Court executing the decree and not by a separate suit.

Where a question arises as to whether any person is or is not the representative of a party,
such question shall, for the purposes of this section, be determined by the Court.

[Explanation I.--For the purposes of this section, a plaintiff whose suit has been dismissed
and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.--(a) For the purposes of this section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party to the suit in which the decree is passed;
and

(b) all questions relating to the delivery of possession of such property to such purchaser
or his representative shall be deemed to be questions relating to the execution, discharge
or satisfaction of the decree within the meaning of this section.]"

16.
Section 51
of CPC enlists the powers of an executing court, as under:

"51. Powers of Court to enforce execution.--Subject to such
conditions and limitations as may be prescribed, the Court may, on the
application of the decree-holder, order execution of the decree--

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by the sale without attachment of any
property;

(c) by arrest and detention in prison for such period not exceeding the
period specified in Section 58, where arrest and detention is permissible under
that Section;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require
:

Provided that, where the decree is for the payment of money, execution
by detention in prison shall not be ordered unless, after giving the judgment-
debtor an opportunity of showing cause why he should not be committed to
prison, the Court, for reasons recorded in writing, is satisfied--

(a) that the judgment-debtor, with the object or effect of obstructing or
delaying the execution of the decree.--

(i) is likely to abscond or leave the local limits of the jurisdiction of the
Court, or

(ii) has, after the institution of the suit in which the decree was passed,
dishonestly transferred, concealed, or removed any part of his property, or

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committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the
decree. the means to pay the amount of the decree or some substantial part
thereof and refuses or neglects or has refused or neglected to pay the same,
or

(c) that the decree is for a sum for which the judgment-debtor was
bound in a fiduciary capacity to account.

Explanation. --In the calculation of the means of the judgment-debtor
for the purposes of clause (b), there shall be left out of account any property
which, by or under any law or custom having the force of law for the time
being in force, is exempt from attachment in execution of the decree."

What are the powers of the Court of Execution?

17. Prior to analyzing the afore-noted provisions, it is important to recall
that the final decree under consideration has resulted from a partition suit in
which, at the first stage, the Court decides inter se share of parties to the suit
property, and their entitlement to seek division thereof. Such preliminary
decree passed under Order XXI Rule 18(2)
of CPC
, determines ownership
rights, shares of parties and their entitlement. It establishes the basis for final
partition of the suit property in question. If division by metes and bounds
cannot be made without further enquiry, then the court proceeds to pass a
preliminary decree and takes assistance from a commissioner, who is directed
to physically examine the property and suggest means and manner of division.
On the basis of this LC's report, the court can grant the final relief of
separating the property. However, if it appears that dividing the property is
not reasonably or conveniently feasible, or that a sale would be more
advantageous, the court may order the sale for distribution of proceeds
according to the determined shares. This course can also be adopted by
consent between the parties. Thus, the final decree conclusively determines
rights of the parties with regard to all or any of the matters in controversy. It
is considered to be the final adjudication, because nothing remains to be done

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thereafter on the question of partition.

18. Further, the provisions referred to in the preceding paragraphs,
concerning powers of executing court, also suggest that the executing court's
power is bounded and restricted. The limitation on court's power is also
indicated by the wording of Section 51, which begins with the stipulation,
"Subject to such conditions and limitations as may be prescribed, the Court
may, on the application of the decree-holder, order execution of the decree".
This means that the court has the power to enforce a decree, but that power is
limited by the conditions prescribed by the decree. In other words,
notwithstanding the range of powers the executing court has been equipped
with, it is not open to such court to go beyond the terms of the decree. Under

Section 47
of the CPC, which has been relied upon by both the parties in their
submissions, the executing court is empowered to determine all questions
between the parties in relation to execution, discharge or satisfaction of the
decree. It allows the executing court to tailor its enforcement efforts to the
specific circumstances of each case, in order to ensure that a decree is
enforced effectively. However, under this provision, jurisdiction is limited to
deciding objections qua executability, on the ground of jurisdictional
infirmity or voidness.12 The said provision does not empower or vest with the
executing court, the jurisdiction to re-draw or overwrite the terms of a decree.
Power under
Section 47
of the CPC is further subject to restrictions relating
to execution, which are provided under
Order XXI of CPC
which deals with
diverse situations.
In a nutshell, the executing court can neither travel behind
the decree, sit in appeal over the decree, nor pass an order jeopardizing right
Brakewel Automotive Components v. P.R. Selvam Alagappan
, (2017) 5 SCC 371.

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of parties as laid out thereunder. Only in limited cases - where the decree is
by a Court lacking inherent jurisdiction or is in nullity - can the decree be
rendered non-est and inexecutable by the executing court.13 Therefore, the
executing Court, in its endeavor to provide relief to the parties, cannot use any
discretion which would tantamount to modifying or altering the decree itself.

19. DHs' argument that they have not received any benefit from the
Decree, although well-intended, holds no weight. Equally persuasive is the
argument of JD-3, who has pointed out that in case DHs are put in possession
of the suit property, it would set the clock back by more than twenty years, by
essentially undoing previous decisions and restarting the trial on an issue that
has been resolved for a long time and confirmed through repeated court
rulings.

20. The parties applied for partition with the aim of dividing their shares,
which resulted in a clear definition of their rights under the preliminary
decree. The next step involved allocation of these rights. LC appointed by this
Court, as noted above, observed that partition of the suit property was not
possible. The paragraphs that follow discuss the suit proceedings, and would
show that the parties evinced a preference for partitioning the suit property at
different stages. Nevertheless, since the proposal did not gain unanimous
approval, a final consent decree was issued mandating the sale of the property.
Hence, the exercise which has been done in the suit proceedings prior to final
decree, cannot be repeated in the execution proceedings. It is not open for this
Court to undertake the exercise of re-examining and re-determining whether
the suit property can be partitioned by metes and bounds, and modify the
Id.

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decree. The final decree for sale has been passed after much deliberation, over
several dates of hearing and across several rounds of discussion amongst the
parties. DHs' right to seek partition by metes and bounds was foreclosed on
the passing of final decree, and therefore, under the ambit of
Section 47
of
CPC, executing court cannot now be called upon to re-determine rights of
parties relating to possession and partition by metes and bounds.

21. Now that the powers of this court stand clarified to the above effect,
this brings us to the next crucial question, as follows:

What are the terms of the Decree and whether they have been modified by the
Division Bench?

22. In order to find answer to the above captioned query, it would be
necessary to examine the orders leading to the passing of the final Decree,
commencing from 09th December, 1997 when the preliminary decree was
passed on the following terms:

" xx ... xx ... xx
27. There shall be a decree;

a) directing the division of the premises bearing No. 54, Friends Colony, New Delhi,
into 4 shares and 1/4th share shall be allotted to the plaintiff;

b) directing the allotment of 1/4th share to Smt. Maduri Singh, (second defendant),
1/4 share to Smt. Vijay Kumari (defendant No. 3) and 1/4th share to the first
defendant;

c) directing the dismissal of the claim of the plaintiff regarding moveable properties
mentioned in the scheduled to the plaint;

d) restraining the first defendant from dis-possessing the plaintiff from the first floor
of the annexe portion of property bearing No. 54, Friends Colony, New Delhi;

e) restraining the first. defendant from preventing the plaintiff from using the
common portions in the premises of 54, Friends Colony, New Delhi;

f) directing the first defendant to pay the plaintiff the costs of the suit;"

23. After the preliminary decree, the Court undertook consequential action
of determining whether division of property was possible by way of metes
and bounds. For this purpose, as is usually the case, an LC was appointed to

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physically examine the suit property and suggest the manner of division. He
was directed to visit the suit property and submit a plan, prepared through a
qualified architect, to demarcate separate shares of each of the parties. The
LC apprised the court that it would not be possible to divide the suit property
into four equal parts, and submitted a report dated 15th December, 1999 to that
effect. At that stage, Plaintiff/DH-1 herein agreed that the suit property cannot
be partitioned by metes and bounds and should be put to sale. This was also
the view orally expressed by the LC, as noted in the Order dated 19th October,
2000, whereupon the court observed that:

"I am fully satisfied that the suit property is incapable of being partitioned by metes
and bounds".

And ordered:

"...I am of the opinion that a division of the suit property cannot be reasonably or
conveniently made and that the sale of the suit property and distribution of the
proceeds would be very beneficial for all the shareholders".

24. The 1/4th co-sharers were directed to submit their sealed offers/bids for
sale/purchase of their respective shares/rights in the suit property. The
preliminary decree was assailed in appeal by Defendant No. 1/JD-1 herein in
RFA(OS) 1/1999, whereupon the following order was passed:

" C.M. 500/2000 in RFA(OS) 1/99
In view of the order passed on 12.7.99 that the proceedings may continue but final
decree will not be passed, no further orders are required to be passed on this
application by which the appellant has sought stay of an order passed on 19.10.2000
by learned Single Judge. The order passed on 19.10.2000 is one of the interlocutory
orders passed and can be said to be a step towards passing final decree. Any party
aggrieved by interlocutory orders has an adequate remedy of challenging the said
orders after passing of the Decree, in case the said party would feel aggrieved by
the Decree.

With these observations the application is dismissed."

25. Parties could not agree on a plan of partition and on 20th February,
2007, consented that the suit property be sold and purchaser be given vacant

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possession. They sought time to explore possibility of getting a purchaser,
failing which, it was to be sold through public auction. On the subsequent
date, the following order was passed:

" xx ... xx ... xx
Since no mode of partition has been found feasible and in view of consent recorded on
20.2.2007, the suit property is put to sale by public auction. At this-stage learned
counsel for defendant no.1 states that defendant no.1 is willing to purchase the share
of the other parties. If that be so, defendant no.1 can participate in the public auction
to the exclusion of his share.

List before the Joint Registrar for finalization of the proclamation terms and
for taking necessary action for sale of the suit property.

xx ... xx ... xx"

26. The aforenoted order, dated 17th May 2007, was also assailed in
appeal,14 wherein the Division Bench vide order dated 27th August 2007,
declined to interfere, with the following observations:

" xx ... xx ... xx
Facts were noted and recorded by the learned Single Judge in order dated 19th
January, 2007 but the parties were given one more opportunity to find a solution
and the suit was adjourned to 20th February, 2007. On 20th February, 2007, when
the matter was listed before learned Single Judge, all parties agreed that they were
unable to find any mode for amicable division of the suit property and agreed that
the suit property be sold and purchaser be given vacant possession. The parties
prayed for some time for getting a purchaser failing which, it was agreed that the
suit property will be sold by public auction. Thus, the learned Single Judge was
considerate and even at that stage on 20.2.2007 granted time to the parties and
explore possibility of getting a purchaser.

Consent given by learned counsel for the appellant for putting the property to
auction has been accepted and acted upon by learned Single Judge for rejecting
the application being IA 5783/2007. In these circumstances, we are of the
considered opinion that reliance on
Section 3
of the Partition Act is misplaced. We
may reiterate the fact that the parties have failed to find out suitable and
appropriate mode for dividing the suit property in last ten years.

Appellant/defendant No.1 is in physical possession of the suit property to the
exclusion of others. As recorded by learned Single Judge, the appellant cannot be
permitted to resile from the consent for sale recorded in the order dated 20.2.2007
and therefore no specific application was required to be filed. The Court has also
recorded that the appellant can participate in public auction and purchase. the
share of other parties as recorded in order the dated 17.5.2007.
FAO(OS) 305/2007 titled Bikramajit Singh Thru LRs v. Bishwajeet Singh & Anr.

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Appellant can participate in public auction to the exclusion of his share. It is also
brought to our notice by learned counsel for the respondent that the
appellant/defendant No.1 had contrary to the interim injunction order entered into
a registered memorandum of understanding with a third party.

Contempt application was filed against the appellant/defendant No. 1. The
appellant is admittedly in possession of the suit property and therefore stalling and
delaying the proceedings and, therefore, for last ten years the preliminary decree
remains on paper and has not been acted upon. We are not inclined to interfere
with the order passed by learned Single Judge. The appeal has no merit and the
same is dismissed."

27. Thereafter, on 01st October, 2007, the Decree was passed in the
following terms:

"CS(OS) No.3235/1988

The Preliminary Decree was passed on 09.12.1997. The parties were not able
to find an amicable division of the suit property in question. It is in view thereof that
on 20.02.2007 it was agreed that the suit property be sold and the purchaser will get
vacant possession of the suit property. The parties were also, not able to get any
purchaser failing which the suit property had been agreed to be sold by public
auction. Learned counsel for the parties state that the shares of the parties have
changed on account of inter se documents executed between the parties. In view
thereof the share of the plaintiff is 31.218 per cent, of LRs of defendant no. 1 is 50
per cent and of the defendant no.3 is 18.782 per cent. A final decree is thus passed
in for respect of the suit property declaring the share of the parties as aforesaid as
also the agreement to put the suit property to public auction by sale to implement
the division of the suit property. In pursuance to and the Decree, now the suit
property would be sold through the public auction." [Emphasis supplied]

28. Taking into account the repeated unsuccessful efforts to divide the suit
property by metes and bounds, parties consented to a decree for sale as they
were in agreement that partition by metes and bounds was not a feasible
option. From the above orders, it is but obvious that the final Decree was
passed as a consequence of parties agreeing to the sale of suit property by
public auction to implement the division of shares as determined in the
preliminary decree, and towards that effort, a proclamation of sale was issued
on 12th February 2009. This is also manifest from the order dated 23rd October
2007, when parties stated that they were not possessed of sufficient funds to

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pay stamp duty for preparing the decree, and the amount for purchase of
requisite stamp duty be deducted out of sale proceeds to be realized from the
sale of suit property.

29. Thereafter, parties engaged in efforts to find a way for the sale of the
suit property, as recorded in order dated 25th March 2008 to the following
effect:

"CS (OS) 3235/1988
xx ... xx ... xx
It has been agreed between the parties that the suit property question has to be
put to sale. The difficulty is with the procedure of sale. Earlier, public auction was
directed which did not meet with a success. Thereafter, the parties sought time to
find out a way as to how the suit property has to be sold. Today also, the court is
faced with the same problem as the plaintiff and the defendants are not in agreement
as to the mode in which it is to be sold.

After some discussion, it appears that the appropriate method of sale of the suit
property would be that both the plaintiff and the defendants shall jointly seek buyers
and both parties would be at liberty to arrange for a buyer. The object being that the
highest price is obtained for the suit property. The counsel for the parties state that
three weeks time be given to them in the first instance to carry out this exercise. In
case they do not achieve any success, then the counsel submit that the alternative of
a public auction can be explored by this court once again.
The counsel for the parties will sit together and settle the terms within a week.
The learned counsel for the parties agree that, broadly speaking, the terms settled in
the earlier proclamation by this court would be the basis for the terms of the sale
except for the price."

30. Several attempts were made to sell the suit property through public
auction, but without any success. The attempt at an inter-party bidding was
also unsuccessful.

31. On 27th August, 2007, the Division Bench in FAO(OS) 305/2005 held
that since the parties had consented to sale of property by public auction,
Appellant cannot be allowed to retract from the same, and the suit property
must be sold in such a manner.15

32. Another Division Bench vide Order dated 11th August, 2010, while
FAO(OS) 305/2005 titled Bikramjit Singh thru LRs & Ors. v. Bishwajeet Singh & Anr.

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issuing notice in an appeal filed by (late) Ms. Madhuri Singh, also restrained
Respondents therein/DHs and JDs 1-4 herein, "from changing status quo with
regard to possession and from entering into any contract for sale of property",
and stayed the suit proceedings before the Single Bench.16

33. In the same matter, on 21st April, 2017, the Appellate Court re-affirmed
the Decree passed by the Single Judge, in the following terms:

"CM APPL. 14312/2010 (stay)

1. The present application has been filed by the appellant praying inter alia for
staying the suit proceedings and for restraining the respondents from selling,
transferring, alienating or creating any third party interest in the suit premises, i.e.,
premises bearing No. 54, Friends Colony (East), New Delhi.

xx ... xx ... xx

5. Having regard to the fact that the shares of the parties in the suit premises have
already been declared in the preliminary decree and a final decree came to be passed
in the suit as long back as on 01.10.2007, this leaves the aspect of apportionment of
the sale proceeds between the parties upon auctioning of the suit premises.

6. We are of the opinion that no further orders are required to be passed in the suit.
Only because the appellant has a dispute with the legal heirs of the deceased
respondent No.1 cannot be a ground to deprive the others of their shares in the suit
premises. The suit is disposed of and the parties are held entitled to seek execution
of the judgment and decree dated 01.10.2007, in accordance with law.

7. As a result, the interim order dated 11.08.2010 is modified to the extent that the
parties in possession of the suit premises will maintain status quo with regard to the
possession and they are restrained from entering into any contract for the sale of the
suit premises, till the execution proceedings that may be filed by any of the parties,
attain finality.

8. As there is a dispute raised by the appellant with regard to her 25% share in the
suit premises, an amount to the extent of 25% of the sale proceeds received on
auctioning the suit premises, after deducting the expenses incurred, shall be secured
in the execution proceedings. Disbursal of the said amount is made subject to a final
decision in the present appeal.

9. The application is disposed of." [Emphasis supplied]

34. Thus, the Division Bench in FAO(OS) 514/2010 disposed of the suit
CS(OS) 3235/1988 on 21st April 2017. This was then clarified vide DB Order
dated 05th November, 2019. The said appellate order reads as under:

"CM 3899/2018 (for modification of order dated 21st April, 2017)
xx ... xx ... xx
FAO(OS) 514/2010 titled
Madhuri Singh v. Bikramjit Singh & Ors
.

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3. Ms. Mini Pushkarna, learned counsel for the Applicants/Plaintiffs
expresses the concern that the said order, not having recorded the failed attempts
at having the suit property auctioned, forecloses the possibility of the LRs of the
Plaintiff, actually seeking possession of their share of the suit property by metes
and bounds. Incidentally, the LRs of the Defendant No.3 also expressed the same
concern.

4. Having perused the orders passed prior to 21st April, 2017, and the fact
that the repeated attempts of auctioning the suit property have failed, the Court
clarifies that the order dated 21st April, 2017 passed by this Court will not be
construed as having foreclosed other possibilities of executing the Decree dated 1st
October, 2007. In other words, in the execution proceedings to be initiated by the
parties for executing the said final decree, it will be open to the executing court to
explore all possibilities of securing to the parties their respective shares, as
determined by the Decree, not limited to the sale of the suit property by way of a
public auction. This should sufficiently allay any apprehension that may be
harboured by either the Plaintiff or the Defendant No.3.

5. The application is disposed of in terms of above order.

CS(OS) 514/2010 & CMs 27307/2018, 32236/2018 and 35376/2019

6. This appeal was originally filed by the Defendant No. 2 in the suit, who
has, during the pendency of the present appeal expired. There are applications
under Order XXII Rule 4 Civil Procedure Code ("
CPC
‟) for her substitution in
the appeal by several applicants. It appears that the Appellant, prior to her death,
purportedly executed more than one Will, and there are probate proceedings
concerning the said Wills, which are still pending in the Civil Courts in Nainital
and Delhi. Clearly, therefore, the present applications seeking substitution of the
Appellant will have to await the final outcome of those proceedings.

7. This appeal itself is directed against an order dated 31st May 2010, which
purportedly crystallizes the entitlement of the Appellant/Defendant No. 2 in the
suit, as far as her share in the suit property is concerned.

8. During the pendency of the present appeal, subsequent to the order dated
21st April 2017, extracted hereinabove, it has been clarified by an order dated 9th
November 2017, that the 25% share of the present Appellant, would have to come
from the share of the Defendant No. 1 in the suit i.e. the 50% share of Defendant
No. 1. It has been clarified by the order dated 21st April, 2017 that the share of
25% of the present Appellant, will be secured by the executing court in the
execution proceedings.

9. The Court is of the view that the abovementioned orders sufficiently
protect the interest of the LRs of the Appellant/Defendant No. 2. The Court is
therefore not prepared to add anything further to what has already been expressed
by the above order dated 21st April, 2017 and the further clarification of this Court
by the order dated 9th November, 2017.

10. As far as the entitlement of the Applicants to be substituted for the Appellant is
concerned, the Court directs that depending upon the outcome of the probate
proceedings, the executing court will entertain the applications on behalf of the
present Appellant and their claim will stand protected in terms of the above orders
of this Court.

11. The appeal and the applications are accordingly disposed of."

[Emphasis Supplied]

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35. Later, by way of an order dated 24th January 2020 in a review petition
against the DB Order, the Bench made observations to the following effect:

"Review Petition No. 24/2020

3. The parties are agreed upon modification of the order dated 5th November, 2019
to the limited extent that in para 11 of the said order the Court has noted that the
appeal stands disposed of.

4. It is stated that the Appellant's entitlement to a share in the suit property is yet
to be considered and has to be decided in the appeal. It is further stated that the
Appellant is required to be substituted by her Legal Representatives.

5. Accordingly, this Court modifies the order dated 5th November, 2019 and directs
that para 11 thereof will now read as under:

"11. The applications are accordingly disposed of. The appeal is set down for
hearing on 30th April, 2020 to determine the above question. The execution
proceedings may continue in accordance with law."

6. The Review Petition is disposed of in the above terms.

FAO (OS) 514/2010

7. List for hearing on 30th April 2020 in the limited question as indicated in the
order dated 5th November 2019 as modified hereinabove."

36. The said appeal continues till date. Thus, at the outset, JDs' reliance on
disposal of the suit is unavailing, as the said order clearly states that parties
had the right to enforce the Decree dated 01st October, 2007.

37. Having read the flow of orders leading up to the instant execution
petition, we can now deal with the effect of the DB Order (dated 5th November
2019), as already extracted in the preceding paragraphs, which is the mainstay
of DH's claim for seeking partition by metes and bounds, as they rely on the
same to contend that the DB Order has modified the Decree. DHs have argued
that under
Order XXI Rule 28 of CPC
, since the order in appeal related to the
same decree of which execution is sought herein, as per the 'doctrine of
merger', Division Bench had modified the Decree by empowering the
executing Court to consider partition, firstly and comprehensively, prior to
exploring possibility of a sale.

38. In the opinion of the Court, the aforenoted construction of the

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observations made in the DB Order, is wholly misconceived. The aforenoted
proceedings note the efforts and stance of parties, which leads to only one
conclusion - that the final decree before the Court is for sale of the property.
The Division Bench, by way of the DB Order, has only clarified its earlier
order dated 21st April, 2017, making it clear that the said order should not be
construed as having foreclosed other possibilities of executing the Decree
dated 01st October, 2007, in terms of the decree and in accordance with law.
Appellate Court has given further clarity by using the expression "in other
words", indicating that the executing Court can explore all possibilities of
securing to parties their respective shares, as determined by the final Decree,
which are not limited to sale of the suit property by way of a public auction.
This merely enables the executing Court to secure respective shares of the
parties by other modes of sale, apart from public auction, which can only
mean that parties can now sell the property by other means, for example - to
a buyer by consent, or, to any of the parties by way of buy-out of shares of
others. However, the final Decree, which arises from a judgment of the same
date and calls only for the sale of the property as method of disposal of
property, remains intact, and it would be a stretch to read it in any other
manner. Allowing partitioning of the property, as prayed for in the relief
clause extracted in para 3 herein, would necessarily mean that the decree has
been reversed, which cannot be countenanced. Thus, Court cannot accept
DHs' notion that the directions in the DB Order imply any alteration or
modification of the Decree.

39. All parties to the suit were duly represented in appeal, a fact strongly
emphasized by DH to suggest the binding nature of the DB Order. Indeed, the
order of Division Bench is binding on this Court under Order XXI Rule 28

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CPC
, having been passed in relation to execution of Decree, and this is not in
contest in any manner. However, we cannot ignore that the said proceedings
related to an interim order. The final judgment and Decree was not assailed
by the appellant therein (late Mrs. Madhuri Singh) and was not the subject
matter of the appeal. Division Bench did not deliberate upon the final
judgment, and therefore, the observations clarifying its earlier order does not
tantamount to a direction to the executing court to separate or divide the suit
property in a manner different from the one set out in the Decree. Therefore,
in the opinion of this Court, it is not open for this Court to partition the suit
property and put DHs in possession of 50% thereof.

40. It is also noted that while DHs have joined hands to claim one moiety
in the suit property and seek possession thereof, however, there is no such
agreement between JDs. Therefore, even if the Court were to, at this juncture,
assume that partition plans suggested by parties are viable and the suit
property could be partitioned by metes and bounds, granting such a relief
would put interest of other JDs in jeopardy. Order dated 01 st October, 2007,
has to be interpreted to ensure that it benefits all parties including JDs, who
resolutely maintain that they do not wish to partition and are interested in sale
of the suit property. They have serious objection with respect to the
workability of the option of part-sale. The substantive ends of justice have to
be seen for not just DHs but for all parties, and as such, DHs' suggestion of
part-possession and part-sale of the suit property is unworkable and riddled
with complications as the JDs are not in agreement with each other.

41. The suit property admeasures 3860 sq. yards. DHs submitted that they
are entitled to 1930 sq. yards and are seeking division of permissible FAR,
and further seek partition by contending that each partition side holds 1930

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sq. yards, which would entitle them to 100 FAR, 25% ground coverage and
up to 9 permissible dwelling units. In the opinion of the court, this would
entail sub-division of the suit property, which is impermissible, and
nonetheless, division on the basis of FAR is clearly beyond the terms of the
Decree. Thus, despite pleas raised by DHs citing feasibility of division under
municipal norms and bye-laws such as MPD 2021, this Court remains
unconvinced. Considering multiple ownership rights, partition by metes and
bounds would necessarily entail such sub-division of the suit property, which
is beyond what is prescribed under MPD 2021.17 This Court is also mindful
of the fact that at some point, predecessor-in-interest of JDs 2-4 [being late
JD-1] had supported/preferred physical partition and opposed sale of the suit
property, but then, DHs have also taken a vacillating position, and such issues
were finally put to bed when the suit court took note of the fact that parties
were not able to resolve their differences by way of partition, and passed the
final consent Decree.

42. For the foregoing reasons, this Court is of the opinion that, since the
Decree has not been modified by the Division Bench, the only course of action
that now remains is to proceed with sale of the suit property, for which, as
directed by the Division Bench, the executing Court shall explore other
possibilities of sale, such as inter-se bidding amongst parties or sale to
identified buyer, with consent of all parties.

43. For such reason, present execution petition, with its prayers A and B as
Terms and Conditions (iv) of Chapter 4.0 of the Development Controls, Activities Permitted, Planning
Norms and Standards of the Master Plan for Delhi-2021, provide as follows:--

"iv. Subdivision of plots is not permitted. However, if there are more than one buildings in one
residential plot, the sum of the built up area and ground coverage of all such buildings, shall not
exceed the built up area and ground coverage permissible in that plot. "

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filed, is not maintainable. All parties are at liberty to press for fresh execution
of the judgment and decree dated 01st October, 2007, in conformity with the
terms stated therein.

44. Unfortunately, the legal battle for DH-1 must be postponed to another
day. Nevertheless, the Court exhorts the parties to put their differences aside,
turn over a new leaf and reach a harmonious resolution through negotiations.

45. Dismissed, with liberty as aforesaid.

SANJEEV NARULA, J
FEBRUARY 15, 2023
d.negi

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