The main legal point established is the maintainability of an execution petition under Order XXXIX Rules 1 & 2 CPC, guided by Section 36 CPC and previous judicial decisions.

JUDGMENT :

VIPIN SANGHI, J.

1. The present appeal is directed against the order dated 06.08.2019 passed by the learned Single Judge, whereby, inter alia, the Execution Petition No.46/2018 preferred by the plaintiff/ appellant to execute the order passed on an application under Order XXXIX Rules 1 & 2 CPC (being I.A. No.3865/2018) was rejected on the ground that the execution petition was not maintainable, and was misconceived.

2. The order dated 20.03.2018 passed by the learned Single Judge may be reproduced. The same recites the background facts of the case:

“I.A.No. 3866/2018 (Exemption)

Exemption allowed subject to just exceptions.

I.A stands disposed of.

CS(OS) 114/2018 & I.A.No.3865/2018(U/o 39 Rules 1 and 2 CPC)

1. This is a suit for possession, mandatory and permanent injunction with respect to a portion of the property comprised in the main property bearing no. G-6, Maharani Bagh, New Delhi which is situated on a plot of land of 800 sq. yds. The disputed portion is shown in red colour in the site plan and is in possession of the defendant no.1 through its guards and servants as stated in para 23 of the plaint.

2. Learned counsel for the plaintiffs argues that the suit house was a jointly owned house of originally the plaintiffs with the defendant no.2 and late Smt. Madhuri Kuldip Singh who is the daughter of Smt. Raj Mohan Singh and the sister of the predecessor-in-interest of the plaintiffs and the defendant no.2. As on date the undivided share of late Smt. Madhuri Kuldip Singh is claimed by the defendant no.1 herein.

3. It is argued that the admitted position is that the suit property by devolution came to be co-owned by the legal heirs of the deceased mother Smt. Raj Mohan Singh, and this suit property was a residential house which was never partitioned between the family members being the legal heirs of Smt. Raj Mohan Singh. It is argued that in a joint family house Section 44 of the Transfer of Property Act, 1882 gives the protection that no stranger can enter into the property. It is argued that in terms of the agreement to sell entered into between Smt. Madhuri Kuldip Singh and the defendant no.1 at best the defendant no.1 could have purchased the undivided 1/6th share of late Smt. Madhuri Kuldip Singh but no possession of the joint family residential house could have been legally given by Smt. Madhuri Kuldip Singh to the defendant no.1 under the compromise dated 9.2.2005 recorded in Suit no. 1261/1995 filed by defendant no.1 herein for specific performance of an agreement to sell the suit property. It is argued that the Suit no. 1261/1995 filed by the present defendant no.1 as plaintiff for specific performance with respect to the entire property G-6, Maharani Bagh, New Delhi stands dismissed, and therefore at best the defendant no.1 would have only 1/6th undivided right in the suit property which fell to the share of late Smt. Madhuri Kuldip Singh. Reliance by the plaintiffs is placed upon a judgment of the Supreme Court in the case of Dorab Cawasji Warden vs. Coomi Sorab Warden and others (1990) 2 SCC 117 that courts can grant status quo ante when by fraud Section 44 of the Transfer of Property Act is violated. It is argued that the present is a fit case for grant of interim injunction because none of the Directors or family members of the Directors or shareholders of the defendant no.1 are living in the suit property but the physical possession of the disputed portion shown in red colour in the site plan is sought to be maintained by the defendant no.1 through its servants and guards. It is argued that disentitlement to legal and physical possession of the defendant no.1 should be legally recognized by preventing the defendant no.1 from in any manner entering upon or using the portion marked in red colour in the site plan filed with the plaint.

4. In view of the arguments urged on behalf of the plaintiffs, and the fact that the suit property is a joint family property which devolved on the legal heirs of Smt. Raj Mohan