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2019 Supreme(Del) 145
IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SHAKDHER, J.
BHAI BALBIR SINGH & ORS - Decree Holders
Versus
BHAI UPINDER SINGH & ORS - Judgment Debtors
EX.P. 92 of 2016
Decided on : 08-01-2019
For the Decree Holders :Mr. Adit S. Pujari with Ms. Kriti Awasthi and Ms. Surabhi Dhar, Advocates.
For the Judgment Debtors :Mr. Abhijat with Mr. Sujoy, Advocates, Mr. Jasmeet Singh with Mr. Srivats Kaushal, Advocates Ms. Priyanka Sharma Goswami with Ms. Anusuya Sadhu Sinha and Ms. Amrita Sharma, Advocates Mr. Sanjeev Mahajan, Advocate Mr. Gaurav Duggal with Mr. Mohit Seth, Advocates B & C. Ms. Malvika Trivedi, ASC with Mr. Pramod Sharma, Advocate
The main legal point established in the judgment is the interpretation of the Settlement Deed clauses and the court's authority to direct specific actions for execution of the decree.
Headnote:
Execution Petition - Settlement Agreement - Clauses (e) and (f) - 337 square yard's - Summary: The court addressed the execution petition seeking physical possession of 337 square yards and further costs incurred by the Decree Holder. The Division Bench partially allowed the appeal, highlighting the lack of consent for the area marked as EIGL, consent for construction of a wall in the outside portion, and no interference in the construction of a bathroom. The court examined the Settlement Deed clauses and directed JD no.2B to demolish and handover the portion marked as EIGL to the decree holder.
Fact of the Case:
The execution petition sought physical possession of 337 square yards and further costs incurred by the Decree Holder. The Division Bench partially allowed the appeal, addressing the lack of consent for the area marked as EIGL, consent for construction of a wall in the outside portion, and no interference in the construction of a bathroom.
Finding of the Court:
The court directed JD no.2B to demolish and handover the portion marked as EIGL to the decree holder, and ensured that the area under occupation of JD no.2A is not disturbed.
Issues: The main issue was the interpretation of the Settlement Deed clauses and the execution of the Relinquishment Deed with respect to Property No.9A, Amrita Shergill Marg, New Delhi.
Ratio Decidendi: The court found Clause 4(e) of the Settlement Deed dated 21.05.2010 unworkable and directed JD no.2B to demolish and handover the portion marked as EIGL to the decree holder.
Final Decision: The court directed JD no.2B to demolish and handover the portion marked as EIGL to the decree holder and ensured that the area under occupation of JD no.2A is not disturbed.
RAJIV SHAKDHER, J.
EX. APPL. No.4/2019 (exemption)
1. Allowed, subject to just exceptions.
EX. APPL. (OS) No.46/2018 in EX.P. 92/2016
2. The substantive prayers made in the execution petition are as follows:-
(a) Direct the Judgment Debtors to handover physical possession of 337 square yard's to the Decree Holders, in the manner and to the extent as ' decided between the parties under Settlement Agreement dated 21.5.2010.
(b) Order the Judgment Debtors to pay further costs incurred by the Decree Holder in pursuing the execution of the award dated 03.05.2005 and order dated 04.09.2012 for compliance with the terms of the settlement deed dated 21.5.2010”
3. This execution petition has been going up and down. In fact, the record shows that the execution petition was disposed of by my predecessor vide order dated 24.11.2016. In that order, certain directions were issued for the purposes of execution of the subject decree. Upon an application being filed on behalf of Judgment Debtor (JD) no.2B for clarification (E.A. (OS) No.798/2016), an order dated 01.12.2016 came to be passed by the learned Single Judge.
4. The learned Single Judge dismissed the application as, according to him, what was recorded in the order dated 24.11.2016 reflected accurately as to what transpired in the Court during the course of hearing.
5. Aggrieved by the order dated 24.11.2016 and 01.12.2016, an appeal was preferred by JD no.2B to the Division Bench. The Division Bench disposed of the appeal vide order dated 05.12.2017.
The appeal was partially allowed by the Division Bench. The relevant observations with regard to the controversy at hand are contained in paragraphs 19 to 23 of the order of the Division Bench. For the sake of convenience the same are extracted hereafter:-
“.....19. Having gone through the said orders and also the settlement agreement, including clauses (e) and (f) thereof, it is not possible to accept the contention raised by BBS that the appellant-BSS by consent had given up his claim of right to use the portion EIGL as also possession thereof. In fact, we do not find any good ground or reason why the appellant-BSS would have given up the right of use the portion EIGL for which there had been contest and proceedings pending since 2005 culminating into settlement agreement dated 21st May, 2010 and then a decision of the FAO(OS) No. 83/2007 on 9th July, 2013. The settlement agreement dated 21st May, 2010 had given specific rights to the appellant-BSS in the portion EIGL in plot 9. When we read the order dated 27th September, 2016 and the order dated 24th November, 2016, we cannot make out that the appellant BSS had understood and had agreed and consent to give up and had consented to the modification of clauses (e) and (f) of the settlement agreement dated 21st May, 2010. In case this was the intent and the appellant-BSS was ad idem on the said aspect, a clear and categoric statement was required. No doubt, order dated 24th November, 2016 is a consent order, albeit it refers to consent given by the appellant-BSS in respect of the construction of the outside boundary wall and in respect of the bathroom. We do not understand the said orders as recording a consent of BSS, giving up his right to use in the EIGL portion. Counsel for the parties have accepted that there is already a wall having doors demarcating the portions EFG and EIGL.
20. We have also gone through the Architect’s letter dated 8th November, 2016 and in particular paragraph 2 thereof, which was relied upon by the counsel appearing for BBS group. Paragraph 2 of the said letter reads as under:-
“Constructing a partition wall 9” thick, 4”-1/2” from the centre line on both sides of the L&DO line, this wall erected will give effect to the best possible way for the demarcation of the new boundary wall including the built up portion of 9 Amrita Shergill Marg, New Delhi.”
21. The plan prepared by the Architect has been shown to us today in the Court. The said plan does not specifically
