Deepak Verma, J. – Leave granted.

2. Parties to the litigation are real brothers having spent their childhood with cheer and joy in the courtyard, are here, now fighting tooth and nail for their respective shares in a piece of plot admeasuring 3149.75 sq. yds. allotted to the partnership firm, viz., M/s. Narinder Kumar Malik & Surinder Kumar Malik at D-2, Udyog Nagar, Rohtak Road, New Delhi.

3. Even though the partnership business could never commence but the plot in question continued to be owned by both of them as partners of the firm to the extent of 50% each. On account of differences having arisen between the parties, the present appellant – Narinder Kumar Malik was constrained to file a suit bearing No. 779 of 1997 before the High Court of Delhi, later transferred to the Court of Additional District judge, Tis Hazari, Delhi and was numbered as 289 of 2004, claiming ½ share in the aforesaid piece of land allotted to the partnership firm.

4. The respondent filed a written statement and took an objection that the property was owned by a partnership firm and thus the suit for partition was not maintainable and rather a suit or dissolution of partnership firm ought to have been filed.

5. During the pendency of the proceedings of the suit, the defendant (respondent herein) filed an application under O.VII R.II of the Code of Civil Procedure (for short, ‘CPC’) for dismissing the suit on the ground that it did not disclose any cause of action as the property was owned by a partnership firm, whereas the appellant herein filed as application under O.XII R.6, CPC praying therein that on account of admission having been made by the respondent, judgment and decree on the said admission be passed.

6. Both the applications came to be considered by the learned trial Judge on 04th November 2004. By the said order, the application filed by the respondent under O.VII R.II, CPC came to be dismissed. However, the application filed by the appellant herein under O.XII R.6, CPC came to be allowed and a preliminary decree of partition was passed in the following terms :

“12. In view of my above discussion, the application of the defendant under order 7 rule 11 CPC is hereby dismissed and application under order 12 rule 6 CPC is hereby allowed. A preliminary decree of partition is passed with the direction to the parties to decide the means of partitioning the plot in question and in case they failed to partition the plot by themselves, a Local Commissioner may be appointed by the court for suggesting the means.

13. The case is now adjourned for 8.12.2004 for further proceedings.”

7. Feeling aggrieved and dissatisfied with the said order respondent herein, viz., Surinder Kumar Malik was constrained to file appeal in the High Court of Delhi at New Delhi registered as R.F.A. No. 649 of 2004 reiterating the grounds taken in the written statement and in the application filed by him under O.VII Rule 11 of CPC.

8. It appears, during the pendency of the said appeal in the High Court, good sense prevailed upon the two brothers and they arrived at a settlement and pursuant thereto “Memorandum of Understanding” (hereinafter referred to as ‘MOU’) came to be executed between themselves on 09th February 2005 at Delhi.

9. It is pertinent to mention here that this MOU was arrived at also on account of the strong belief of the Division Bench of the High Court that the parties being real Brothers should settle the matter among themselves through mediation. Accordingly, on 17th December 2004 an order was passed, with the consent of the parties, that both the brothers would appear before Mr. M.L. Mehta, Addl. District Judge, Delhi who was requested to be a mediator. On 17th March 2005 it was noted by the High Court that parties have entered into a settlement as MOU was already entered into between the parties on 09th February 2005. However, despite settling the matter outside the court on their own terms and conditions, it appears that the dispute between