Bishwajeet Singh vs Bikramjit Singh Through Lrs.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 2803

IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Narula, J.
Bishwajeet Singh & Ors. – Appellants
Versus
Bikramjit Singh Through Lrs. & Ors. – Respondents
EX.P. 118 of 2019 & EX.APPLs.(OS) 722 of 2020, 870 of 2020, 170 of 2021
Decided On : 15-02-2023

Advocates appeared:
Mr. Arvind K. Nigam, Senior Advocate with Mr. Jai Sahai Endlaw, Advocate for DH-1 and Mr. Akhil Sachhar, Advocate for the DHs 2 & 3.
Mr. Nikhil Mehra, Mr. Ramnesh Kumar Sahu and Mr. Sangram Vijay Singh, Advocates, for the Judgment Debtors-2.
Mr. Kirtiman Singh and Ms. Vidhi Jain, Advocates, for the Judgment Debtors-3.
Mr. Ritin Rai, Senior Advocate with Mr. Aabhas Kshetarpal, Ms. Aditi Laxman and Ms. Aditi Rao, Advocates, for the Judgment Debtors-4.
Judgment Debtors-1 (deceased) is represented through Judgment Debtors-2 to 4.

Headnote:
PARTITION - MODIFICATION OF DECREE - EXECUTION - JURISDICTION OF EXECUTING COURT - SCOPE - POWER OF EXECUTING COURT TO PARTITION SUIT PROPERTY - CONSENT DECREE - SALE OF SUIT PROPERTY - MODIFICATION OF DECREE BY DIVISION BENCH - INTERPRETATION OF DECREE - DB ORDER - CLARIFICATION OF EARLIER ORDER - NO MODIFICATION OF DECREE - EXECUTING COURT BOUND BY DECREE - NO JURISDICTION TO PARTITION SUIT PROPERTY - SALE OF SUIT PROPERTY - OTHER MODES OF SALE - INTER-SE BIDDING - SALE TO IDENTIFIED BUYER - CONSENT OF ALL PARTIES - EXECUTION PETITION NOT MAINTAINABLE - LIBERTY TO PRESS FOR FRESH EXECUTION OF DECREE.
Fact of the Case:

Plaintiff/DH-1, now a septuagenarian, is the last surviving member of the original parties in the civil suit. He desires to re-enter his parental dwelling home, which was purchased by their mother in 1958. For him, the relief of possession and partition is immediate, in contrast to a sale order. In his view, sale of the property is unfair and distressing, depriving him of the right to inhabit the dwelling home that has enormous sentimental attachment. The history of legal disputes between the parties has also led DH-1 to believe that sale process could be a long and arduous journey with an uncertain outcome. He has underscored the obstacles in selling a freehold property as big as the suit property, which seems to be an unprecedented case in Friends Colony. The thought of finding a new home, even if the sale of the property goes through, is a daunting prospect for him at his advanced age. Therefore, given the possibility of suit property being partitioned, he considers that selling the same may not be best course of action.
Finding of the Court:

The final decree before the Court is for sale of the property. The Division Bench, by way of the DB Order, has only clarified its earlier order dated 21st April, 2017, making it clear that the said order should not be construed as having foreclosed other possibilities of executing the Decree dated 01st October, 2007, in terms of the decree and in accordance with law. Appellate Court has given further clarity by using the expression "in other words", indicating that the executing Court can explore all possibilities of securing to parties their respective shares, as determined by the final Decree, which are not limited to sale of the suit property by way of a public auction. This merely enables the executing Court to secure respective shares of the parties by other modes of sale, apart from public auction, which can only mean that parties can now sell the property by other means, for example -- to a buyer by consent, or, to any of the parties by way of buy-out of shares of others. However, the final Decree, which arises from a judgment of the same date and calls only for the sale of the property as method of disposal of property, remains intact, and it would be a stretch to read it in any other manner. Allowing partitioning of the property, as prayed for in the relief clause extracted in para 3 herein, would necessarily mean that the decree has been reversed, which cannot be countenanced. Thus, Court cannot accept DHs' notion that the directions in the DB Order imply any alteration or modification of the Decree.
Issues: 1. Whether a decree for sale by auction precludes the executing court from directing a partition of the suit property by metes and bounds? 2. Has the Division Bench modified the final judgment and decree in ancillary appeal proceedings related to an interim order?
Ratio Decidendi: 1. The executing court has no jurisdiction to partition the suit property in a manner different from the one set out in the Decree. 2. The Division Bench has not modified the final judgment and decree in ancillary appeal proceedings related to an interim order.
Final Decision: Execution petition dismissed, with liberty to press for fresh execution of the decree.

JUDGMENT

Sanjeev Narula, J.

THE CONTROVERSY ON MAINTAINABILITY

1. The present execution proceedings under Order 21 Rule 11 of CPC arise from final judgment and decree^{1[The formal decree has not been drawn up as yet, thus last paragraph of the judgment is treated as a decree, in light of the judgment of the Supreme Court in Sir Sobha Singh and Sons Pvt. Ltd. v. Shashi Mohan Kapur (deceased through L.R.) in C.A. No. 534/2019. The reference to the word "decree" in the judgment is to be read accordingly.]} dated 01st October, 2007 [hereinafter, `Decree'] deciding a suit for partition of property bearing No. 54, Friends Colony East, New Delhi-110065, admeasuring 3860 sq. yards [hereinafter, `suit property']. As per the Decree, the suit property has to be auctioned and sale proceeds have to be apportioned among the parties, as per their respective shares.

2. For convenience, the parties to this execution petition and their respective shares are noted below:

Party in execution proceeding	Name/Description	Party in civil proceeding	Share of suit property
Decree Holder No. 1["DH-1"]	Bishwajeet Singh	Plaintiff in civil suit.	1/4th share
Decree Holder No. 2-3	Legal Representatives [hereinafter,, `LRs'] of Late Mrs. Vijay Kumari,, elder sister of DH-1.	Mrs. Vijay Kumari was Defendant No. 3 in civil suit.	1/4th share
Judgment Debtor No. 1	Late Mr. Bikramjit Singh,, elder brother of DH-1,, now represented through his LRs.	Mr. Bikramjit Singh was Defendant No. 1 in civil suit.	1/4th share
Judgment Debtors No. 2-4	LRs of JD-1.	Not a party	Not a party
Mrs. Madhuri Singh, (since deceased) wife/LR of Late Mr. Inderjit Singh	eldest brother of DH-1. Qua her succession,, testamentary proceedings are on-going.	Mr. Inderjit Singh was Defendant No. 2 in civil suit.	1/4th share,, which has been ordered to be secured.^{2[ In FAO (OS) 514/2010, a dispute was raised by Mrs. Madhuri Singh with regard to her 25% share in the suit premises (arising out of the share of her deceased husband Late Mr. Inderjit Singh). Therein, vide order dated 21st April 2017, the Bench had ordered that 25% of the sale proceeds received upon auctioning the suit property, after deducting the expenses incurred, are to be secured in the execution proceedings, disbursal whereof shall be subject to the final decision in FAO (OS) 514/2010. The said appeal is still pending.]}

3. Contrary to the mandate of the Decree, Decree Holders [hereinafter collectively, `DHs'], seek immediate and exclusive physical possession and partition of their 50% share (in the freehold property) by metes and bounds, contending that the Decree stands modified vide order dated 05th November, 2019 passed by the Division Bench [hereinafter, `DB Order'].^{3[In FAO(OS) 514/2010 titled Madhuri Singh v. Bikramjit Singh and Ors.]} The prayer clause for seeking court's assistance in executing the decree, reads as follows:

"A. Grant immediate exclusive physical possession of 50% of the superstructure of the suit property to the applicants;

B. Partition the Suit Property by metes and bounds into two equal halves."

4. Judgment Debtors [hereinafter, collectively, `JDs'], in opposition, raise two primary protests by arguing that: (i) granting of possession and partition through metes and bounds, goes beyond the scope of Order XXI Rule 11 of the Code of Civil Procedure, 1908 [hereinafter, `CPC']; and (ii) the Decree, which was passed with the consent of all parties, only permits sale of suit property, and cannot be altered without mutual consent.

5. Conflicting opinions expressed by the parties have given rise to two critical questions: (a) Does a decree for sale by auction preclude the executing court from directing a partition of the suit property by metes and bounds? (b) Has the Division Bench modified the final judgment and decree in ancillary appeal proceedings related to an interim order?

CONTENTIONS OF PARTIES

6. Mr. Arvind K. Nigam, Senior Counsel for DHs, made the following submissions:

i. Efforts were repeatedly made to