Sh. Kuldip Kumar vs Sh. Prem Nath Kumar And Ors.
2004 Latest Caselaw 463 Del

JUDGMENT

Mukundakam Sharma, J.

1. In this execution petition, which is filed by the decree holder, praying for issuance of a warrant of possession, a prayer is made for giving possession of the suit property, namely, 47-B, Friends Colony (East), Mathura Road, New Delhi amongst the plan tiff and the defendant No.1 by metes and bounds as shown in the map Ex.PW-1/4. When the said matter was listed before this court on 2nd April, 2003, a statement was made by the counsel appearing for the decree holder that the judgment debtor NO.2, who was defendant No.1 in the suit, happens to be the brother of the decree holder and that he was willing to comply with the decree. Pursuant thereto, a wall has also been constructed partitioning the property. It was also stated by the counsel before this court that the only thing which is required to be done by the judgment debtors is to shift to their portions and the decree holder shifting to the other portion. But it was also pointed out that the judgment debtor No.2 was not willing for execution of the decree. Accordingly, only a notice was issued, at that stage, to the judgment debtors, upon which both the judgment debtors have filed one objection each, which are registered as E.A.743/2003 filed by judgment debtor No.1 and E.A.816/2003 file by judgment debtor No.2.

2. I have perused the aforesaid two objections, which are filed by the judgment debtors and also heard the learned counsel appearing for the parties. During the course of his submissions, Mr.J.N.Aggarwal, learned counsel for both the judgment debtors/objctors drew my attention to paragraph 6 of the preliminary objections as taken in the aforesaid objection as also to para 10 under under the heading 'Parawise Reply'. In para 6, it is stated by the said judgment debtors that the projection by the decre holder that the property has been divided by metes and bounds is incorrect and that although a partitioning wall has been constructed, the same is opposed to the municipal laws and that the house cannot be sub-divided into two parts in view of the proisions of the Delhi Municipal Corporation Act. It was also submitted that an application for setting aside the ex parte judgment under Order 9 Rule 13 CPC was filed in the main suit, which according to the judgment debtors is still pending.

3. I have considered the aforesaid submissions of the counsel appearing for the judgment debtors. It is not disputed by the judgment debtors that in Suit No.1965/94 a demarcation was carried out in presence of the judgment debtor No.2 after which a wall also constructed partitioning the two properties into two halves in accordance with the decree passed. It is also pointed out on behalf of the decree holder that raising of the partitioning wall took about a week's time and that the judgment debtor No. 2 was present in the house practically on all those days when the aforesaid construction was made and that he never raised any objection to the construction of the said wall and rather he associated himself with the raising of the wall. It is also submitted by the counsel for the decree holder that partitioning the property into two halves in terms of the decree, by metes and bounds, was not an objection which was raised by the judgment debtor No.1 or by judgment debtor No.2 but the only objection, as it appears, of the judgment debtor No.2 is to shift to the portion that has fallen to his share as per the decree,

4. A copy of the sale deed of the property is placed on record, which was executed on 19th May, 1958. The aforesaid sale deed discloses that the total area of the property is 1742 sq. yds. This court passed a decree in respect of the suit property and also giving effect to the order of the probate court declaring the plaintiff and the defendant No.1 as owners of half share of the suit property ad also passing a decree to the effect that each one of them would be entitled to exclusively own and possess heir respective share in the suit property as per the map/plan Ex.PW-1/4. It was ordered that the suit property would stand divided between the plaintiff and the defendant No.1 by metes and bounds as shown in the aforesaid map/plan and a final decree the aforesaid effect was passed. Although it is the contention of the judgment debtor No.2 in this court that he has filed an application under Order 9 Rule 13 CPC praying for setting aside the said decree , however, on perusal of the records, I find hat no such application is pending in the suit, as stated by him. Therefore, the aforesaid decree, which is passed by this court has become final and binding on the parties. As a final decree was passed , therefore, the property stands divided between the parties, in the aforesaid manner. In terms of the decree possession of the part falling to the share of the decree holder is to be delivered to him. The area of the suit property is also about 1742 sq.yds and , therefore, is a huge area. Two equal parts could be conveniently and effectively carved out . The partition wall has already been erected by the decree holder in terms of the map/plan Ex.PW-1/4. The objections that are sought to be raised by the judgment debtor No.2 in the objection are matters which are required to be raised, if at all, during the trial of the suit but no such objection was ever raised. The executing court cannot go behind the decree. Its duty is to give effect to the decree. Therefore, the objections that are risked by the judgment debtors are found to be without any merit and are dismissed. A warrant of possession is issued, which shall be issued through the Bailiff, who shall give possession of the property in terms of the decree and in terms of the map/plan Ex.PW-1/4 to the decree holder. A compliance report shall be filed before the next date.

5. Renotify on 6th August, 2004.