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2023 DIGILAW 1868 (DEL)

Sunil Varma v. Roopa Khanna

2023-03-27

CHANDRA DHARI SINGH

body2023
JUDGMENT Chandra Dhari Singh, J. (Oral) I.A. No. 5938/2023 (under Section 151 CPC) 1. The present application has been filed under Section 151 of the Code of Civil Procedure, 1908 (hereinafter "CPC") on behalf of the applicants/plaintiffs seeking the following reliefs: "It is therefore most respectfully prayed that the present application be allowed, and Registry of this Hon'ble Court be directed to treat decree dated 17.02.2016 be as final decree and the same be modified accordingly in terms of order dated 03.04.2018. Pass any other or further order, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 2. The learned counsel for the applicants/plaintiffs submitted that two proceedings were initiated for partition of the property bearing No. 3/24, Shanti Niketan, New Delhi (hereinafter "suit property"), bearing CS (OS) No. 2554/2010 and CS (OS) No. 116/2011. It is submitted that both the suits came to be listed before this Court on 17th February 2016 whereby the shares of the parties were declared and the Predecessor Bench of this Court passed a decree of partition in favour of the parties. 3. It is submitted that the judgement and decree dated 17th February 2016 had certain salient features discussing the shares of parties, right of pre-emption, injunction regarding selling of shares, valuation of property based on circle rate, by virtue of which it was understood between the parties that it was a preliminary decree and in case of non-compliance by the defendant, the plaintiffs were to take steps for issuance of final decree. 4. Learned counsel submitted that an I.A. bearing No. 6557/2017 came to filed in the captioned suit wherein it was prayed that final decree under Section 2 of the Partition Act, 1893 read with Order XX Rule 18 and Section 151 of the CPC be passed. The application came before the Court on 3rd April 2018 and the Predecessor Bench of this Court observed that the decree dated 17th February 2016 is not a preliminary decree but a final decree for partition in accordance with the terms mentioned therein. It was also observed that the parties could seek execution of the judgment and decree dated 17th February 2016, since the same was in the nature of a final decree. It was also observed that the parties could seek execution of the judgment and decree dated 17th February 2016, since the same was in the nature of a final decree. It is submitted that the plaintiffs approached the Registry of this Court for issuance of a final decree, however, the same was not issued and the matter was placed before the Court for appropriate directions. 5. It is submitted that vide order dated 5th September 2022, the Predecessor Bench gave liberty to the plaintiff to file appropriate application for getting the order in terms of order dated 3rd April 2018 declaring it to be the final decree and be incorporated in the decree dated 17th February 2016. 6. It is submitted that in view of the aforesaid, the instant application has been filed. 7. Heard the learned counsel for the plaintiffs. Record has also been perused. 8. By way of the instant application, the plaintiffs seek drawing up of a final decree sheet in terms of the order dated 17th February 2016 passed by this Court, claiming that in pursuance of the said order only a preliminary decree has been signed. 9. It is pertinent to examine the orders passed by the Predecessor Benches of this Court to evaluate the claim of the plaintiffs raised by way of the instant application. 10. The Predecessor Bench on 17th February 2016 disposed of the aforesaid suits filed for partition of the suit property while explicitly laying down the terms for the same. The relevant portion is reproduced hereunder: "4. In view of the passing of the preliminary decree as stated above and giving a right of pre-emption to the sister Smt. Roopa Khanna under Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act') an injunction order follows that neither Sh. Anil Varma nor the legal heirs of deceased Sh. Sunil Varma will sell their shares in the suit property unless first offering their shares to Smt. Roopa Khanna pursuant to Smt. Roopa Khanna's right of pre-emption under Section 22 of the Act. 5. Accordingly, both the suits are disposed of firstly by giving the necessary declaration and injunctions to Smt. Roopa Khanna in terms of the prayer clauses of Smt. Roopa Khanna in CS(OS) No.2554/2010, and passing a preliminary decree in CS(OS) 116/2011 as stated above. 6. 5. Accordingly, both the suits are disposed of firstly by giving the necessary declaration and injunctions to Smt. Roopa Khanna in terms of the prayer clauses of Smt. Roopa Khanna in CS(OS) No.2554/2010, and passing a preliminary decree in CS(OS) 116/2011 as stated above. 6. Simultaneously it is observed that if for some reason Smt. Roopa Khanna fails to exercise her rights of pre-emption under Section 22 of the Act, at that stage, the plaintiffs in CS(OS) No. 116/2011 can revive their suit for taking further steps in terms of the preliminary decree passed today declaring the shares of the parties. 7. It is also further agreed, and which will form part of the decree to be drawn up by this Court, that, for the shares of Sh. Anil Varma and the share falling to the estate of Sh. Sunil Varma by Smt. Roopa Khanna will exercise her rights and obligations of pre-emption under Section 22 of the Act within nine months from today's date with the fact that Smt. Roopa Khanna within a period of three months from today will make an offer in writing to the defendants or their counsel appearing in the suits today in this Court as to the price at which Smt. Roopa Khanna wants to purchase the 2/9th share of Sh. Anil Varma and 2/9th share falling to the estate of late Sh. Sunil Varma. On receiving the offer by the defendants to the extent of their shares, the defendants will give their counter offer with further clarification that none of the parties are entitled to give any offer or counter offer which is below the circle rates fixed by the competent authority for the area in which the suit property is situated. 8. Any other issue with respect to exercise, valid exercise, failing to exercise etc of the pre-emption right will be subject matter of appropriate independent proceedings. 9. Suits are accordingly disposed of and a decree be drawn up by granting the reliefs of declarations and injunctions to the plaintiff in CS(OS) No.2554/2010 and passing a preliminary decree in favour of the parties in terms of the shares as stated above in CS(OS) No. 116/2011. Parties are left to bear their own costs." 11. 9. Suits are accordingly disposed of and a decree be drawn up by granting the reliefs of declarations and injunctions to the plaintiff in CS(OS) No.2554/2010 and passing a preliminary decree in favour of the parties in terms of the shares as stated above in CS(OS) No. 116/2011. Parties are left to bear their own costs." 11. Evidently, the suit was disposed of with directions to draw up a decree sheet granting the reliefs in terms of the shares as decided and detailed under the order. Accordingly, a decree sheet was drawn up on 17th February 2016 and the matter was finally disposed. 12. Thereafter, the plaintiffs in the instant matter by way of filing an application sought passing of a final decree in terms of the preliminary decree so allowed vide the order dated 17th February 2016, which came to be dismissed by the order dated 3rd April 2018, the relevant portion of which is reproduced hereunder: "4. The decree dated 17th February, 2016, as a reading of the order directing passing thereof shows, is not a preliminary decree but a final decree for partition on terms mentioned therein and for this reason only, the suit was not kept pending as is generally the norm after passing of the preliminary decree for partition only declaring the shares of the parties in the property. 5. In the light of the aforesaid, IA No.6557/2017 for passing of final decree of partition is misconceived notwithstanding several orders passed thereon since the day it first came up before this Court and which orders also came to be passed on the submissions of counsel of the decree dated 17th February, 2016 being a preliminary decree for partition. It appears that both counsels were under a misconception on this respect. 6. The plaintiffs, if have any remedies against the decree dated 17th February, 2016, have to avail those remedies and/or seek execution thereof and IA No.6557/2017 cannot be entertained. 7. IA No.9744/2017 and IA No.9745/2017 as a consequence of orders on IA No.6557/2017 are also misconceived and all the said applications are dismissed. 8. No further orders are required in the suit. 9. The counsel for the plaintiffs at this stage draws attention to para 6 of the order dated 17th February, 2017 which provides for the plaintiffs to revive this suit if the defendant fails to exercise her right of pre-emption provided thereunder. 10. 8. No further orders are required in the suit. 9. The counsel for the plaintiffs at this stage draws attention to para 6 of the order dated 17th February, 2017 which provides for the plaintiffs to revive this suit if the defendant fails to exercise her right of pre-emption provided thereunder. 10. Needless to state, the counsel for the defendant states that the defendant has not failed to exercise right of pre-emption. 11. The question, whether the defendant has exercised the said right or not, can also be decided in execution. 12. Clarifying so, the need to grant liberty to the plaintiffs to apply for revival of the suit is also not felt." 13. The Predecessor Bench, pursuant to consideration of all necessary facts and circumstances before it, including the fact that the requisite steps for the exercising the right of pre-emption were already taken by the defendant, held that the decree passed vide order dated 17th February 2016 was in fact a final decree in itself and not a preliminary decree. It is apparent from a perusal of the record, that neither the decree dated 17th February 2016 nor the order dated 3rd April 2018 was challenged. The orders of the Predecessor Bench, hence, remained to in effect and operation. 14. The plaintiffs instead filed another application seeking directions from this Court inter alia with regard to the drawing up of the final decree sheet. Despite clear observations and consequent findings as well as directions of the Predecessor Bench vide order dated 3rd April 2018, the plaintiffs again sought the same relief. The matter was thereafter fixed for several subsequent dates for the purpose of valuation of the property. 15. Again on 2nd June 2022, the Joint Registrar (Judicial) concerned of this Court observed that necessary steps with effect to the preparation of the decree sheet had already been taken and hence, nothing remained for adjudication in the application filed for directions from this Court. 15. Again on 2nd June 2022, the Joint Registrar (Judicial) concerned of this Court observed that necessary steps with effect to the preparation of the decree sheet had already been taken and hence, nothing remained for adjudication in the application filed for directions from this Court. The relevant part of the said order is also reproduced hereunder: "Perusal of the file reveals that the case was finally decided and disposed off by the Hon'ble Court and it was pending for preparation of the Decree Sheet, but due to the fact that the valuation report had not been filed by the concerned SDM, the Decree Sheet could not be prepared by the Registry, because of which the file was taken up again on the present application of the plaintiff for necessary directions to defendant for taking steps for preparation of the Decree Sheet in terms of the judgment/decree dated 17.02.2016. Learned counsel for the plaintiff has referred to the orders of the Hon'ble Court dated 17.02.2016 and 03.04.2018 in this regard. Since, the necessary steps for preparing Decree Sheet have been taken, nothing survives in this application. The present application stands disposed off. Matter be placed before the Registry for preparation of the Decree Sheet in terms of the final order of the Hon'ble Court." 16. It is noted that the fact that the suit was finally disposed of was once again reiterated in the aforementioned order and the drawing up of decree was directed, however, the matter was taken up on office noting on 2nd August 2022 wherein it was found that since a decree sheet in the matter had already been prepared, the same could not be prepared twice. The effective portion of the said order is reproduced hereunder: "The file has been taken up again on office noting of the concerned official of the Decree Branch of the Registry, in which he has mentioned that decree sheet cannot be prepared again as the decree sheet had already been prepared in terms of the order of the Hon'ble Court dated 17.02.2016. The perusal of the order of the Hon'ble Court dated 17.02.2016 reveals that two cross suits between the parties i.e. CS(OS) 2554/2010 and CS(OS) 116/2011 were disposed off by the Hon'ble Court in terms of the consent order as mentioned in para 02 of the said order, and preliminary decree in favour of the parties was passed. The perusal of the order of the Hon'ble Court dated 17.02.2016 reveals that two cross suits between the parties i.e. CS(OS) 2554/2010 and CS(OS) 116/2011 were disposed off by the Hon'ble Court in terms of the consent order as mentioned in para 02 of the said order, and preliminary decree in favour of the parties was passed. The preliminary decree was drawn in terms of the order of the Hon'ble Court dated 17.02.2016. Thereafter, plaintiff filed IA No. 6557/2017 for passing of the final decree, but the Hon'ble Court vide order dated 03.04.2018, dismissed the IA No. 6557/2017 with observation in para no. 4 of the said order that the decree dated 17.02.2016 was not preliminary decree, but it was the final decree for partition suit. The Hon'ble Court further observed in para 6 of the said order that if the plaintiffs have any remedy against the decree dated 17.02.2016, they have to avail that remedy and/or seek execution thereof. Thereafter, plaintiff no.2 filed IA No. 11567/2019 under Section 151 CPC for directions to the defendants to take steps for preparation of the judgment/decree sheet dated 17.02.2016 and for necessary directions to the Registry for preparation of the decree sheet. The valuation report of the suit property No. 3/24, Shanti Niketan, New Delhi was filed on record by the concerned SDM. The application was disposed off vide order dated 02.06.2022 and the matter was sent to the Registry for preparation of decree sheet in terms of the final order of the Hon'ble Court. However, as per the file noting dated 16.07.2022 put up by the Decree Branch of the Registry, the concerned official of the Decree Branch has stated that the decree sheet in terms of the order dated 17.02.2016 has already been prepared and it cannot be prepared twice." 17. The factum of a decree sheet being drawn up has not been disputed by the plaintiffs. Furthermore, the decree dated 17th February 2016 remains to be in operation, without challenge, whereby, the rights of the parties to the extent of their shares were laid down and the matter was finally disposed of. The factum of a decree sheet being drawn up has not been disputed by the plaintiffs. Furthermore, the decree dated 17th February 2016 remains to be in operation, without challenge, whereby, the rights of the parties to the extent of their shares were laid down and the matter was finally disposed of. A perusal of the previous orders passed in the instant suit, which have also been reproduced and considered by this Court, reveals that the Predecessor Benches as well as the Joint Registrar (Judicial) of this Court have reiterated over and again the fact that the decree dated 17th February 2016 is in the nature of a final decree and is not a preliminary decree. Despite the repeated confirmation and reaffirmations, the plaintiffs continue to seek an order declaring the said decree to be final decree and the same be incorporated in the decree sheet, especially when none of the orders have been challenged by the plaintiffs. 18. The rights and shares of the parties involved have been sufficiently elaborated upon and reiterated in the aforesaid previous orders passed in the instant suit and clearly laid down in the decree dated 17th February 2016. Moreover, the other procedural formalities, including valuation of the suit property and right of pre-emption, have also been acted upon and fulfilled. Since a decree sheet as noted above has already been prepared and made available to the parties which is in the nature of a final decree, this Court does not find any reason to allow the instant application. 19. Therefore, keeping in view the aforesaid facts, circumstances, the decree dated 17th February 2016 and the orders of this Court passed in the instant suit, this Court does not find any merit in the instant application and is inclined to dismiss the same. 20. The instant application, hence, stands dismissed for being devoid of merit. 21. The order be uploaded on the website forthwith.