MUKTA GUPTA, J.

1. Petitioners are aggrieved by the order dated 20th October 2009 whereby their application under VII Rule 11 read with Section 151 CPC filed as respondents in Probate Case No. 218 of 2006 was dismissed.

2. After the death of Shri Mulakh Raj Khanna disputes and differences arose between his son J.N. Khanna, Prem Khanna and Pran Khanna and the original owner of property No. BB-15 measuring 509/58 sq. yds now known as Greater Kailash Enclave - II regarding a construction agreement entered between Roshan Lal Kapoor with Shri Mulakh Raj Khanna and M/s. Mulakh Raj Khanna (HUF) through its Karta Shri Mulakh Raj Khanna. A sole arbitrator was appointed wherein award was made by the arbitrator on 20th March, 1982 and 5th April, 1982. On 9th April, 1982 J.N. Khanna filed an application before the District Judge Delhi for making the award dated 20th March, 1982 rule of the Court. Prem Nath Khanna and Pran Nath Khanna were impleaded as respondents 2 and 3, however despite service no objections were filed and the award was held to be legal and valid and thus made the rule of the Court and a decree was passed thereon. The award and decree was passed in the following terms:

"(1) That Shri Roshan Lal Kapoor should transfer the plot bearing No. N-B/15 E.P. Railway Refugee Rehabilitation Cooperative House Building Society, Greater Kailash Enclave II, New Delhi with superstructure on it in favour of Shri J.N. Khanna for the consideration of Rs. 30,000/- which he has already received and acknowledged and the amount on the construction has admittedly been spent by late Shri Mulkh Raj Khanna and Mulkh Raj Khanna and Sons HUF.

(2) That Shri Roshan Lal Kapoor shall apply to the concerned authorities such as competent authority under the Urban Land (Ceiling and Regulations) Act and also to the Delhi Development Authority for getting permission to execute the sale deed.

(3) That any amount of unearned increase payable to the Delhi Development Authority shall be borne by Shri J.N. Khanna and his sons, M/s. Ravi, Rajiv and Sanjay Khanna."

3. Almost 7 years thereafter on 16th August, 1989 Prem Nath Khanna and Pran Nath Khanna filed a Suit No. 172 of 1989 titled as Shri Prem Nath Khanna & Others vs. Shri Jatinder Nath Khanna & Others for partition and rendition of accounts before the Court of Senior Sub-Judge Amritsar against J.N. Khanna, his sons, their sisters and also against their own sons.

4. Thereafter the respondents herein filed a petition for grant of probate in respect of will dated 29th October, 1976 purported to have been executed by deceased Mulakh Raj Khanna. The petitioners contested the said petition by filing written statement. During the course of proceedings in the probate case, civil Suit No. 172 of 1989 titled as Prem Nath Khanna & Others vs. Satinder Khanna & Others pending before the Senior Sub-Judge, Amritsar was decided vide judgment and decree dated 13th February, 2009 wherein the Will dated 29th October, 1976 the probate of which was sought in the present case was held to be not a legal and valid will of late Mulakh Raj Khanna and was held to be a fabricated document. Thus, an application under Order VII Rule 11 CPC read with Section 151 CPC was filed on 20th March, 2009 by the petitioners herein praying that the probate petition was barred by provisions of Section 11 CPC and was liable to be rejected under Order 7 Rule 11 CPC.

5. In the Suit No. 172 of 1989 titled as Prem Nath Khanna & Others vs. Satinder Khanna and Others the plaintiffs were Prem Nath Khanna and Pran Nath Khanna both S/o late Mulakh Raj Khanna and the defendants were Jatinder Nath Khanna (D-1) S/o Mulakh Raj Khanna, Rajeev Khanna (D-2), Sanjay Khanna (D-3), Ravi Khanna (D-4) sons of Jatinder Nath Khanna, Neeraj Khanna (D-5), Amit Khanna (D-6), Kaushal Khanna (D-7) all S/o of Prem Nath Khanna, Pankaj Khanna (D-8) S/o of Prem Nath Khanna, Smt. Sudesh Mehra (D-9) and Smt. Vijay Bahl (D-10), daughters of Mulakh Raj Khanna. It was stated in the plai