( 1 ) THIS order will dispose of the application of defendants 14 and 16 under Order 23 Rule 3 read with Section 151 of the Code of Civil Procedure. By this application the applicants/defendants 14 and 16 seek to redetermine the share of the applicants in the property in suit.

( 2 ) THE brief facts resulting in the filing of the application may be summarised as under:

( 3 ) THAT one Shri Shiv Sahai expired intestate and was survived by his three sons namely Surat Singh and Narain Singh. Each one of them had 1/3rd share in the property. Narain Singh also expired on 18th December, 1962 intestate and is survived by his four daughters. Defendants 14 and 16 are two of the daughters of the deceased Narain Singh. On the death of Narain Singh each of the daughters claimed to have inherited 1/12th undivided share in the property. Lt. Col. Gaj Singh Yadav (Retd) one of the legal heirs of Surat Singh filed this suit for partition of the ancestral properties listed in the plaint and for appointment of a Local Commissioner to suggest the mode of partition and to pass a final decree after such report of the Local Commissioner was received. The applicants and other daughters of Narain Singh appointed Wing Comdr. M. P. Yadav as their Attorney to contest this suit and to do all things, to settle and compound matters, disputes and actions and to take all reasonable steps that may be necessary with regard to the conduct of the cases pertaining to the properties situated at Delhi and Kosli, to withdraw or compromise the pending cases and to submit to arbitration any difference or dispute that may arise touching or in any way relating to the property.

( 4 ) ON April 4,1989 when the matter came up for hearing before the court parties informed the court that they have settled their disputes regarding their shares and the statement of the parties was accordingly recorded by the court. On behalf of the applicants their Attorney made a statement before the court that out of the free will and instructions from defendants 13 to 16 (which included the applicants) he was instructed to make the statement that out of the share to which the said defendants were entitled, 1/60th share may be given to the plaintiff Lt. Col. Gaj Singh Yadav (Retd ). The Court accordingly on the same date granted a preliminary decree declaring that the parties to the suit were entitled to the shares mentioned in that order. Shares of the applicants and the other two daughters of Narain Singh was declared as 285/3600.

( 5 ) THEREAFTER the parties made efforts to have the matter settled amongst themselves but when no settlement could be arrived, the Court by order dated May 6, 1993 appointed Justice D. R. Khanna (Retd) as the Commissioner to suggest the mode of partition of the suit properties except the agricultural land mentioned at S. No. 2 (a) of the Schedule B of the preliminary decree. The Commissioner it appears had heard the matter on different dates and held 23 sittings and filed his report before the Court. Some of the parties filed objections to the report which are yet to be decided. In the meantime, in or about February 1997 the applicants filed the application as mentioned above for modification of the preliminary decree passed by this Court in 1989. This application was later on amended pursuant to an order passed by this Court on 4-8-1998.

( 6 ) THE grounds on which the preliminary decree dated 19th April, 1989 is sought to be reopened are: (1) that under Order 23 Rule 3 no decree could be passed without there being a written application signed by the parties before the Court; (2) that the Attorney was not authorised to make any statement giving up the share of the applicants to any other person, (3) that the preliminary decree has been passed on the basis of fraudulent statement of the Attorney, and (4) the decree is void for want of registration inasmuch as a share in the immovable property could not be relinquished in favour of the plaintiff with