P. N. Nag ( 1 ) IN this application filed on behalf of the J. Ds. it has been prayed that the execution application filed on 17. 5. 1993 may be dismissed with costs. ( 2 ) RELEVANT facts for determining the controversy, which emerge from the various orders of the court and pleadings of the parties are that Arun Kumar J. on 5. 2. 1993 in Suit No. 1310/88 passed the following order : "accordingly I direct that the company shall transfer the Defence Colony, New Delhi property to Narender Nath and/or has nominees within three months from today. Narender Nath will simultaneously vacate all the portions thereof to the plaintiff. The plaintiff company will also pay a sum of Rs. 4,45,212. 00 to Narender Nath within the said period against his handing over possession of the portions of Golf Links property in his occupation to the company. " ( 3 ) THE DH-plaintiff filed on 17. 5. 1993 (refiled on 19. 5. 1993) execution petition No. 103/93 seeking execution of the order dated 5. 2. 1993 passed by Arun Kumar, J. in Suit 1310/88, On 20. 5. 1993 this court issued warrants of possession as per prayers (a), (b) and (d) in the execution petition. Prayer (a) relates to issuance of the warrant of possession for taking vacant possession of the portion of property No. 41, Golf Links, New Delhi which is in use and occupation of the defendants. ( 4 ) AGAINST this order dated 20. 5. 1993 directing issuance of warrants of possession, the JD-defendants filed a review application, being RA 9/93 which was also dismissed by Arun Kumar, J. on 24. 5. 1993 holding that the application was malafide. ( 5 ) AGAIN, against the order dated 20. 5. 1993 the JDs-defendants filed EFA (OS) 2/93 which was dismissed as withdrawn vide order dated 25. 5. 1993 passed by the Division Bench comprising of the Chief Justice and Anil Dev Singh, J. ( 6 ) THEREAFTER, EA 173/93 in Ex. 103/93 came up before Arun Kumar, J. for consideration on 25. 5. 1993 and the perusal of the order dated 25. 5. 5. 1993 passed by the Division Bench comprising of the Chief Justice and Anil Dev Singh, J. ( 6 ) THEREAFTER, EA 173/93 in Ex. 103/93 came up before Arun Kumar, J. for consideration on 25. 5. 1993 and the perusal of the order dated 25. 5. 1993 would show that a proposal was given by defendants that JDs 2 to 4/defendants 2 to 4 as well as another son of JD No. 4, who is not a party, would give an undertaking to this court and also file affidavits in this behalf to vacate all the portions in property No. 41, Golf Links, New Delhi which were in their possession and they would hand over vacant possession to the DH/plaintiff. ( 7 ) IN pursuance to the order dated 25. 5. 1993, defendants 2 and 4 and another son of defendant No. 4 Mr. Rana Nanda filed affidavits by way of undertaking to vacate the portions of 41, Golf Links, New Delhi which were in their use and occupation on or before 30. 9. 1993. Vide order dated 28. 5. 1993 the undertakings furnished by defendants and Mr. Rana Nanda for vacating the portions in their occupation in 41, Golf Links, New Delhi were accepted and it was ordered that the defendants would be bound by the same. The plaintiff had already handed over the keys of the Defence Colony property to counsel of the defendants. The plaintiff was to deposit a bank draft in favour of the Registrar of this court in the sum of Rs. 4,45,212. 00 and also the title deeds with respect of defence Colony properties on or before 30. 9. 1993. ( 8 ) THE aforesaid sum of Rs. 4,45,212. 00 alongwifeh the title deeds, according to counsel for the DH/plaintiff, was deposited on 7. 9. 1993. ( 9 ) THEREAFTER the JDs-defendants filed EFA (OS) 3/93 against, the orders dated 20th, 24th, 27th and 28th May, 1993. The Division Bench comprising of the Chief Justice and Dalveer Bhandari, J. on 7. 7. 1993 after considering the fact that the appellant had filed an undertaking on 25. 5. 1993 before the learned single Judge for vacating the premises by 30. 9. 1993 which was accepted by the executing court and that the appellants had also withdrawn FAO (OS) 2/93 which was filed earlier against the order of 20. 5. 7. 1993 after considering the fact that the appellant had filed an undertaking on 25. 5. 1993 before the learned single Judge for vacating the premises by 30. 9. 1993 which was accepted by the executing court and that the appellants had also withdrawn FAO (OS) 2/93 which was filed earlier against the order of 20. 5. 1993, found no merit in the appeal and dismissed the same. ( 10 ) AGAINST the order dated 7. 7. 1993 dismissing EFA (OS) 3/93 passed by the Division Bench, it appears, the JDs-appellants filed a special leave petition, being SLP (Civil) No. 11039/93 in the Suprame Court. ( 11 ) AGAINST the order dated 5. 2. 1993 passed in S. 1310/88, JDs- defehdants filed an appeal, being FAO (OS) 39/93 in this Court. Along with the said appeal, an application, being CM 684/93, seeking stay of the impugned order dated 5. 2. 1993 was also filed. Vide order dated 12. 5. 1993 the Division Bench comprising of the Chief Justice and Anil Dev Singh, J. admitted the appeal, which is still pending. However, CM 684/93 seeking interim stay was dismissed. ( 12 ) AGAINST the order dated 12. 5. 1993 passed by the Division Bench on CM 684/93, JDs-appellants filed a special leave petition, being SLP (Civil) No. 8781/93, before the Supreme Court. ( 13 ) THEREAFTER, another CMP No. 1878/93 seeking stay of the impugned order dated 5. 2. 1993 was filed in FAO (OS) 39/93. The said application was again dismissed by the Division Bench comprising of Hon ble the Chief Justice and Dalveer Bhandari, J. vide order dated 7. 7. 1993. ( 14 ) AGAINST the order dated 7. 7. 1993 passed in CM 1878/93 in FAO (OS) 39/93, the JDs-appellants filed special leave petition, being SLP (Civil) No. 11040/93, in the Supreme Court. ( 15 ) ALL the three SLPs, namely SLP (Civil) 8781/93, SLIP (Civil) 11039/93 and SLP (Civil) 11040/93 came up for hearing before the Supreme Court on 27. 9. 1993 and on that date the same were dismissed as withdrawn. ( 16 ) ANOTHER application, being CMP No. 2649/93, was filed in FAO (OS) 39/93 on behalf of the JDs-appellants seeking directions of the court that the JDs-appellants might not be asked to vacate their portion of property bearing No. 41, Golf Links, New Delhi during the pendency of that appeal. ( 16 ) ANOTHER application, being CMP No. 2649/93, was filed in FAO (OS) 39/93 on behalf of the JDs-appellants seeking directions of the court that the JDs-appellants might not be asked to vacate their portion of property bearing No. 41, Golf Links, New Delhi during the pendency of that appeal. That application came up before DB III on 29. 9. 1993 and the court extended the time for vacating the premises by another ten days from 30. 9. 1993. At the same time the court appointed Shri Ravinder Sethi, Sr. Advocate, as the local commissioner in whose presence the possession of the portion of the property would be handed over by the JDs-appellants to the DH-respondent on 11. 10. 1993 at 2. 30. p. m. ( 17 ) THE JDs-appellants, again, filed CMP No. 2882/93 in FAO (OS) 39/93 seeking (i) extension of time for delivery of possession; and (ii) directions to the local commissioner to deposit the keys with the Registrar of this Court till the disposal of EAs 200, 268 and 286 of 1993. EAs 200 and 286/93 have been dismissed as infructuous today vide separate order. The said application, CM 2882/93, came up before the Division Bench No. III on 11. 10. 1993 and on that date the same was dismissed. ( 18 ) IN pursuance of the orders of the court the possession has since been delivered by the JDs. to the plaintiff in the presence of Shri Ravinder Sethi, Sr. Advocate, who has been appointed as the local commissioner for this purpose. ( 19 ) MR. R. K. Makhija, Sr. Advocate, for the JDs. in support of the present application, EA 268/93, has vehemently submitted that the orders dated 5. 2. 1993 and 28. 5. 1993 passed by Arun Kumar, J. inasmuch as directing taking possession of the property No. 41, Golf Links, New Delhi by the DH from the JDs. are wholly without jurisdiction. According to him, the decree is a nullity and cannot be executed as the suit is for injunction and declaration only whereas the learned Judge has passed a decree for partition in terms of the compromise. According to him, under Delhi High Court Rules and Orders, the decree of partition could not have been passed by the learned single judge when the suit was only for declaration and injunction. According to him, under Delhi High Court Rules and Orders, the decree of partition could not have been passed by the learned single judge when the suit was only for declaration and injunction. No doubt under the amendment of C. P. C. in 1976 such a decree can be passed provided the Delhi High Court Rules are not in conflict with such amendment. However, Delhi High Court Rules do not permit the passing of such a decree which shall prevail in the event of conflict and which have not been amended as yet. He has relied upon a decision of the Full Bench reported as M/s Prtntpak Machinery Ltd. , New Delhi Vs. M/s Jay Kay Paper Conqeters. New Dethi ( AIR 1979 Del 217 ). Again, decree for partition does not become enforceable unless the same is engrossed on the stamp paper. He has relied upon Bholanath Karmakar and others Vs. Madanmohan Karmakar and others ( AIR 1988 Cal 1 ). He has again relied upon Dilbagh Rai and others Vs. Mt. Teka Devi (1932 Lahore 249 ). According to these authorities decree having not been drawn up on stamp paper was held not to be a decree. Furthermore, no decree has been drawn up and as such not executable. ( 20 ) ON the other hand, counsel for the DH, has submitted that no decree of partition has been passed by the learned single Judge and, therefore, there is no question of payment of any stamp duty and the order dated 5. 2. 1993 has been correctly passed by the learned single Judge in accordance with the provisions of the Code of Civil Procedure. Counsel for the DH, has drawn my attention to Section 36 of the Code of Civil Procedure which lays down that the provisions of this code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order ). According to counsel for the DH, what they have sought is the execution of the order dated 5. 2. 1993 passed by Arun Kumar, J. and not the execution of the decree and the warrants of possession have correctly been issued by the learned single Judge and there is no legal infirmity in passing that order. According to counsel for the DH, what they have sought is the execution of the order dated 5. 2. 1993 passed by Arun Kumar, J. and not the execution of the decree and the warrants of possession have correctly been issued by the learned single Judge and there is no legal infirmity in passing that order. ( 21 ) I have given careful consideration to the rival contentions of the parties and in my opinion it is not necessary to go into this question and the application must be dismissed for the reasons to be given hereinafter. Firstly, as already stated, in FAO (OS) 39/93 (which is still pending final adjudication) two applications, being CMPs 684 and 1878 of 1993, seeking stay of operation of orders dated 5. 2. 1993, 20,24, 25, 27 and 28. 5. 1993 passed by Arun Kumar, J. in pursuance of which later warrant of possession was issued by the court, were filed by the JDs. and dismissed by the Division Bench. Even SLPs (Civil) filed against the orders of the Division Bench, as mentioned above, were also dismissed by the Supreme Court. In other orders, decisions of the Division Bench on the interim applications were upheld by the Supreme Court. ( 22 ) THE question raised by Mr. Makhija before this court that the order is not executable and is without jurisdiction, in my opinion, ought to and could have very well been raised before the Supreme Court. Therefore, to my mind in the face of the order of the Supreme Court dated 27. 9. 1993 passed in SLPs mentioned above upholding the decisions of the Division Bench on interim applications, such an argument is not permissible to be raised. ( 23 ) SECONDLY, the order dated 5. 2. 1993 is under challenge in FAO (OS) 39/93 preferred by the JDs and the question of jurisdiction of executing court and excutability of decree/order of the court and whether the decree is a nullity or not, can very well be agitated before the Division Bench whenever the appeal is finally heard. When the Division Bench is already seized of the matter, it will not be appropriate for me to pass any order on the present application which possibly can result into conflict with the decision of the Division Bench. When the Division Bench is already seized of the matter, it will not be appropriate for me to pass any order on the present application which possibly can result into conflict with the decision of the Division Bench. Further the JDs can also not be permitted to have two parallel proceedings - one before the single Judge and the other before the Division Bench. Furthermore, the warrant of possession has already been executed and the possession has been delivered to the DH on 11. 10. 1993. ( 24 ) THIRDLY, as I have noticed earlier that the JDs have given an undertaking before the learned single Judge, which was accepted, and before the Division, Bench when time for undertaking was extended, that they would vacate the premises within the stipulated period and hand over the same to the plaintiff. Now, by the present amunication, the JDs want to bye pass and frustrate this undertaking which cannot be permitted. It is the duty of the court to enforce the undertaking given before the court and thereby uphold the rule of law. Court should not pass an order which may have the effect of fullifying the undertaking given before the court. Court cannot come to the aid of a person who at one stage gives an undertaking to the court that he would vacate the premises but never in fact intends to honour it. The application, therefore, is not only highly malafide but is gross abuse of the process of court. ( 25 ) IN the light of what is discussed above, the application, is, therefore, accordingly dismissed with costs which are assessed at Rs. 1,000. 00.