Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 773

IN THE HIGH COURT OF DELHI AT NEW DELHI
Chandra Dhari Singh, J.
Sunil Varma & Anr. – Appellants
Versus
Roopa Khanna – Respondent
CS(OS) 116 of 2011
Decided On : 27-03-2023

Advocates appeared:
Mr. Amol Sharma, Advocate, for the Plaintiff.
Nemo, for the Defendant.

The main legal point established was the interpretation of the decree dated 17th February 2016 as a final decree for partition, influencing the dismissal of the application for a final decree.

Headnote:
Section 151 CPC - Application for Final Decree - Partition Act, 1893, Order XX Rule 18 CPC - The court discussed the decree dated 17th February 2016, which was held to be a final decree for partition and not a preliminary decree. The court also considered the right of pre-emption, injunction regarding selling of shares, and valuation of property based on circle rate. The key legal provisions discussed were Section 151 CPC and the Partition Act, 1893.
Fact of the Case:

The plaintiffs sought a final decree for partition of a property based on a decree dated 17th February 2016. The court found that the decree was final and not preliminary, and dismissed the application for a final decree.
Finding of the Court:

The court found that the decree dated 17th February 2016 was a final decree for partition and not a preliminary decree. The plaintiffs' application for a final decree was dismissed for being devoid of merit.
Issues: The main issue was whether the decree dated 17th February 2016 was a final or preliminary decree for partition.
Ratio Decidendi: The court held that the decree dated 17th February 2016 was a final decree for partition, as evidenced by previous orders and the nature of the relief granted.
Final Decision: The court dismissed the plaintiffs' application for a final decree, finding it devoid of merit.

JUDGMENT

Chandra Dhari Singh, J. (Oral)

I.A. No. 5938/2023 (under Section 151 CPC)

1. The present application has been filed under Section 151 of the Code of Civil Procedure, 1908 (hereinafter "CPC") on behalf of the applicants/plaintiffs seeking the following reliefs:

"It is therefore most respectfully prayed that the present application be allowed, and Registry of this Hon'ble Court be directed to treat decree dated 17.02.2016 be as final decree and the same be modified accordingly in terms of order dated 03.04.2018.

Pass any other or further order, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

2. The learned counsel for the applicants/plaintiffs submitted that two proceedings were initiated for partition of the property bearing No. 3/24, Shanti Niketan, New Delhi (hereinafter "suit property"), bearing CS (OS) No. 2554/2010 and CS (OS) No. 116/2011. It is submitted that both the suits came to be listed before this Court on 17th February 2016 whereby the shares of the parties were declared and the Predecessor Bench of this Court passed a decree of partition in favour of the parties.

3. It is submitted that the judgement and decree dated 17th February 2016 had certain salient features discussing the shares of parties, right of pre-emption, injunction regarding selling of shares, valuation of property based on circle rate, by virtue of which it was understood between the parties that it was a preliminary decree and in case of non-compliance by the defendant, the plaintiffs were to take steps for issuance of final decree.

4. Learned counsel submitted that an I.A. bearing No. 6557/2017 came to filed in the captioned suit wherein it was prayed that final decree under Section 2 of the Partition Act, 1893 read with Order XX Rule 18 and Section 151 of the CPC be passed. The application came before the Court on 3rd April 2018 and the Predecessor Bench of this Court observed that the decree dated 17th February 2016 is not a preliminary decree but a final decree for partition in accordance with the terms mentioned therein. It was also observed that the parties could seek execution of the judgment and decree dated 17th February 2016, since the same was in the nature of a final decree. It is submitted that the plaintiffs approached the Registry of this Court for issuance of a final decree, however, the same was not issued and the matter was placed before the Court for appropriate directions.

5. It is submitted that vide order dated 5th September 2022, the Predecessor Bench gave liberty to the plaintiff to file appropriate application for getting the order in terms of order dated 3rd April 2018 declaring it to be the final decree and be incorporated in the decree dated 17th February 2016.

6. It is submitted that in view of the aforesaid, the instant application has been filed.

7. Heard the learned counsel for the plaintiffs. Record has also been perused.

8. By way of the instant application, the plaintiffs seek drawing up of a final decree sheet in terms of the order dated 17th February 2016 passed by this Court, claiming that in pursuance of the said order only a preliminary decree has been signed.

9. It is pertinent to examine the orders passed by the Predecessor Benches of this Court to evaluate the claim of the plaintiffs raised by way of the instant application.

10. The Predecessor Bench on 17th February 2016 disposed of the aforesaid suits filed for partition of the suit property while explicitly laying down the terms for the same. The relevant portion is reproduced hereunder:

"4. In view of the passing of the preliminary decree as stated above and giving a right of pre-emption to the sister Smt. Roopa Khanna under Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act') an injunction order follows that neither Sh. Anil Varma nor the legal heirs of deceased Sh. Sunil Varma will sell their shares in the suit property unless first offering their shares to