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IN THE HIGH COURT OF DELHI AT NEW DELHI
Navin Chawla, J.
M/s Cna Exports Private Ltd - Appellant
Versus
Janak Datwani & Ors. - Respondents
CM(M) No. 220 of 2022 and CM APPL. No. 12309 of 2022
Decided On : 15-12-2023
Execution Petition - Appointment of Local Commissioner - Code of Civil Procedure, 1908 - Order XXVI Rule 9 - CS (OS) No. 698/2003.
Fact of the Case:
The petitioner filed an execution petition seeking appointment of a Local Commissioner to demarcate and erect a boundary wall in accordance with the final decree of partition dated 17.04.2007. The application was dismissed by the Executing Court, leading to the present petition.
Finding of the Court:
The Court found that the appointment of a Local Commissioner was not maintainable as the possession of the property was with the Receiver appointed by the Court. The Court also noted that there were pending litigations regarding the shareholding of the petitioner company.
Issues: The main issue was whether the appointment of a Local Commissioner was justified in the execution proceedings, and whether the petitioner had the authority to file such an application.
Ratio Decidendi: The Court held that the possession of the property was with the Receiver appointed by the Court, and there were pending litigations regarding the shareholding of the petitioner company. Therefore, the appointment of a Local Commissioner by the petitioner was not maintainable.
Final Decision: The petition was dismissed, and no costs were awarded.
JUDGMENT
Navin Chawla, J. - This petition has been filed challenging the order dated 25.01.2022 (hereinafter referred to as the 'Impugned Order') passed by the learned Additional District Judge-04, South-East, Saket Courts, New Delhi (hereinafter referred to as the 'Executing Court') in Execution Petition No. 29/2019, titled M/s C.N.A. Exports Pvt. Ltd. v. Sh. Janak Datwani & Ors., dismissing the application filed by the petitioner seeking appointment of a Local Commissioner.
2. The above Execution Petition has been filed by the petitioner seeking execution of the Final Decree of partition of the property bearing No.6, Friends Colony (West), New Delhi, (hereinafter referred to as the 'Suit Property') dated 17.04.2007 passed by this Court in CS (OS) No. 698/2003, directing as under:-
"...it is ordered that a final decree of partition in respect of property bearing No.6, Friends Colony West, New Delhi be and the same is hereby passed directing that Portions "A" "B" & "C" as shown in the site plan "Y" shall fall to the share of defendant No.3 (M/s CNA Exports Pvt. Ltd.), defendant No.2 (M/s In Exports Pvt. Ltd.) and the plaintiff (Mrs. Jaskirat Datwani) respectively.
It is further ordered that portions "A1" "B1" & "C1" as shown in the site plan "X" with respect to servants quarters shall fall to the share of defendant No.2 (M/s In Exports Pvt. Ltd.), defendant No.3 (M/s CNA Exports Pvt. Ltd.), and the plaintiff (Mrs. Jaskirat Datwani) respectively.
It is further ordered that a wall measuring 9" % inches shall be got constructed vertically to physically divide the aforesaid property as per plans "X" and "Y" by the local commissioner Ms.Deepa Arya Madhok, Advocate, with the assistance of the same architect.
It is further ordered that all the parties shall cooperate at the time when the wall would be constructed and no hindrance will be caused by the parties.
It is further ordered that the plans marked as "X" and "Y" shall form part of the decree."
3. The petitioner herein filed an application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 before the learned Executing Court praying for appointment of a Local Commissioner with the following directions:-
"a) To demarcate the CNA Exports Pvt. Ltd. Decree Holder Company's share in accordance with the final decree of partition dated 17.04.2007 to the extent of 38% situated in 6, Friends Colony (West), New Delhi.
b) To under his supervision have erected a boundary wall of 10ft. in height and fixing of an iron gate to ensure independent access and security thereby protecting the Decree Holder Company's share to the extent as detailed in the partition decree dated 17.04.2007."
4. The above application has been dismissed by the learned Executing Court vide the Impugned Order, observing as under:-
"7. It is seen that the Order dated 26.07.2010 was challenged by the Decree Holder before the Hon'ble Supreme Court in SLP (C) No. 32452- 32453 of 2010, wherein the Hon'ble Supreme Court by the Order dated 05.12.2017 found no ground to interfere with the Order dated 26.07.2010. The Receiver has been in possession of the Decree Holder portion of the said property since 2010 and has been filing regular reports.
8. Since the portion of the Decree Holder in the said property is already in possession of the Receiver as the issue of shareholding of the Decree Holder is a subject matter of 6 suits pending before the Hon'ble Delhi High Court. Till the said suits are decided, the Receiver ought to continue with the possession of the portion of the said property belonging to the Decree Holder in terms of Order dated 26.07.2010 passed by the Hon'ble Delhi High Court which has been confirmed by the Hon'ble Supreme Court vide Order dated 05.12.2017."
Petitioner's Submissions
5. The learned counsel for the petitioner submits that the Impugned Order is liable to be set aside by this Court inasmuch as the learned Executing Court has failed to appreciate that in terms of the Judgment and Decree dated 17.04.2007 (supr
AI
The possession of the property by the Receiver and the existence of pending litigations regarding shareholding influenced the Court's decision to dismiss the petition seeking appointment of a Local C....
The appointment of an Advocate Commissioner is unnecessary when sufficient evidence exists to determine the facts in a partition suit.
The appointment of an Advocate Commissioner in a partition suit is unnecessary if sufficient evidence has already been presented by the parties involved.
The court clarified the rights of the parties in the subject property and directed the appointment of a Local Commissioner to effectuate the preliminary decree for partition, in line with the provisi....
The onus is upon the plaintiff to prove the encroachment and produce the relevant record before the Revenue Official to enable demarcation. The Court cannot create evidence in favor of a party.
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