Gurvir Inder Singh And Another vs Brig. Rajendra Singh (Deceased) ...
2009 Latest Caselaw 1629 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Ex. P. No.326/2003 & Ex.A.No.199/2004 (u/O
            21 R 23(2) read with Section 151 CPC)

%                      Date of Decision: April 24, 2009


# Gurvir Inder Singh & Anr.                  ..... Decree Holders
!               Through: Mr.Abhishek Singh with Mr.Atul T.N.,
                          Advocates

                                Versus

$ Brig. Rajendra Singh (deceased)
  Through LRs
                                                          .....Objectors

^                  Through: Mr.Amit S. Chadha, Sr. Advocate with
                            Mr.Ajit Dayal, Mr.Aditya Madan and
                            Mr.Kunal Sinha, Advocates

CORAM:
HON'BLE MR. JUSTICE S.N. AGGARWAL

1.

Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported in the Digest?YES

S.N.AGGARWAL, J (ORAL)

1. This order shall dispose off the execution petition filed by

Shri Gurvir Inder Singh @ Bulbul Singh and Shri Jugvir Inder Singh

(hereinafter to be referred to as decree holders) for execution of

consent decree of partition dated 5.9.1989 in Suit No.2526/1987.

This order will also dispose off the objections against the execution

filed by Smt. Priti Suri and Mrs.Timki Singh @ Salini Singh

(hereinafter to be referred as the objectors).

2. In order to decide the objections against the

maintainability of the present execution petition it will be necessary

to give a brief background of the facts of the case leading up to the

filing of the present execution petition. These facts are

summarised as follows:-

3. The decree holders and the objectors are related to each

other as real brothers and sisters. The property which is in dispute

is property bearing No.B-21, Westend, Diplomatic Enclave

Extension, New Delhi built on a plot area of about 800 sq. yds. Late

Brig. Rajendra Singh and Late Ms.Indrani Singh were the parents of

the decree holders and the objectors.

4. Shri Gurvir Inder Singh (decree holder No.1) had earlier

filed a suit being Suit No.2526/1987 in this Court against his

parents and brother and that suit was decreed by a consent decree

dated 5.9.1989 on the basis of terms of compromise contained in

their joint compromise application being IA No.5782/1989 filed in

Suit No.2526/1987. It is this consent decree which is sought to be

executed by the decree holders in the present execution. The

prayers made in the execution petition read as under:-

"(a) Issue warrant of attachment in respect of the amount of rent of Rs.71,80,922/- of property No.B-21, Westend, Diplomatic Enclave Extension, New Delhi deposited in this Hon'ble Court in Suit No.3084 of 1991 as per details given in paragraph 10 above and pay 1/4th share in the said amount to the decree holder.

(b) Issue warrant of possession in respect of 1/4th share of the decree holder in property bearing No.B-21, Westend, Diplomatic Enclave Extension, New Delhi and hand-over possession of the said share to the decree holder by affixing the copy of the warrant on conspicuous place of the property and proclaiming the

substance of the decree;"

5. The execution petition seeking execution of consent

decree dated 5.9.1989 was filed by the decree holders after more

than 13 years on 10.11.2003. The date of filing of the execution

petition is mentioned because of an objection of limitation against

maintainability of the execution taken on behalf of the objectors.

The objection of limitation will be dealt with at appropriate stage in

this order.

6. Before going further it will be relevant to refer to the

terms of the consent decree as it will be necessary for deciding the

objection raised on behalf of the objectors against maintainability of

the present execution. The relevant clause of the consent decree

dated 5.9.1989 is extracted below:-

"A. That the defendant No.1 Brig. Rajendra Singh/father of the plaintiff, and defendant No.3 Mrs.Indrani Singh/mother of the Plaintiff will have the absolute right to enjoy the properties mentioned in the plaint are owners during their life time. In the event of the demise of Brig. Rajendra Singh/Defendant No.1 or Mrs.Indrani Singh/Deft No.3, the survivor amongst the two would have the right to enjoy all the properties. After the demise of both defendant No.1 & 3, the properties shall devolve equally on the plaintiff, his brother Shri Jagvir Inder Singh/Defendant No.4 and the Plaintiff's two sisters Mrs.Preeti Suri wife of Shri Brij Suir and Miss Salini Singh alias Miss Timki Singh"

7. The parents of the decree holders and the objectors

were parties in the suit in which consent decree was passed. The

father of the parties expired on 6.6.1990 and the mother expired on

26.11.1991. While the mother of the parties was alive, the decree

holder No.1 filed a civil suit on 3.10.1991 in this Court being CS(OS)

No.3084/1991 (later on transferred to the District Court and was re-

numbered as Suit No.362/06/91) this suit was filed by him for

partition of the same property in regard to which consent decree

dated 5.9.1989 stood already passed. The basis of claim of the

plaintiff for partition in the said suit was the consent decree dated

5.9.1989 in Suit No.2526/1987 and also a will dated 15.4.1990 of

his father set up by him in the said suit and according to which the

suit property was bequeathed by the father in equal share in favour

of his four children.

8. Brig. Rajendra Singh during his lifetime executed a will

dated 29.2.1988 by which he bequeathed his half share in the suit

property in favour of his wife Ms.Indrani Singh who in her own right

was the owner of the remaining half portion of the suit property.

The mother of the parties during her lifetime also executed a will

dated 3.11.1991 by which she bequeathed the entire suit property

in favour of her both the daughters who are objectors in this

execution petition.

9. The decree holders are alleged to have sold their share

in the suit property which they got in the consent decree dated

5.9.1989 to one Mr.Virender Sahlot and had allegedly executed a

MOU dated 13.9.2005 in his favour. A suit for specific performance

being CS(OS) No.1455/2005 was filed in October, 2005 by said

Mr.Virender Sahlot against decree holders on the basis of MOU

dated 13.9.2005 which is pending adjudication in this Court.

10. It will further be significant to mention that a Receiver in

respect of suit property was appointed on 3.9.1998 in FAO(OS)

NO.108/1998 and later on vide order dated 28.7.2006 passed in

Suit No.362/06/91, the suit property was ordered to be sealed and

admittedly as on date the suit property is lying sealed.

11. Mr.Amit S. Chadha, learned senior counsel appearing on

behalf of the objectors has opposed the execution petition on the

ground of limitation as well as on merits. He has argued that

limitation for filing of execution petition is 12 years from the date of

decree and according to him the execution petition filed by the

decree holders on 10.11.2003 was beyond the prescribed period of

12 years from the date of consent decree of partition dated

5.9.1989. To meet this objection of Mr.Chadha, Mr.Abhishek Singh,

learned counsel appearing on behalf of the decree holders has

relied upon the provisions contained in Article 136 of the First

Schedule of the Limitation Act, 1963 to contend that the limitation

of 12 years for filing the execution will start from the date the

decree of partition becomes enforceable. The learned counsel

appearing on behalf of the decree holders has argued that the

consent decree dated 5.9.1989 became executable only after the

death of the parents of the parties and according to him the mother

of the parties expired on 26.11.1991 and, therefore, he submits

that the present execution filed by the decree holder on 10.11.2003

comes within limitation period of 12 years.

12. Article 136 in the First Schedule of the Limitation Act

reads as under:-

136 For the execution of any Twelve When the decree or order decree (other than a years becomes enforceable or where decree granting a the decree or any subsequent mandatory injunction) or order directs any payment of order of any civil court. money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place:

Provided that an application for the enforcement of execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.

13. A plain reading of Article 136 referred above shows that

the limitation for filing of execution is 12 years from the date the

decree becomes executable. I, therefore, agree with the contention

advanced on behalf of the decree holders that the present

execution petition is within limitation. I do not find any merit in the

argument on the point of limitation urged on behalf of the

objectors. In view of provisions contained in Article 136 of the

Limitation Act, this execution petition is treated as within limitation.

14. It is true that the present execution petition is within

limitation but, the question that arises for consideration is whether

on the facts of the case as stated above, this execution petition is

maintainable? On giving my anxious consideration, I am of the

view that this execution petition seeking execution of the consent

decree dated 5.9.1989 is not at all maintainable. It may be seen

from the terms of the consent decree dated 5.9.1989 extracted

above that the parents of the parties were to be the absolute owner

of the suit property during their lifetime. The ownership necessarily

implies that the owner of the property is free to deal with his

property in any manner he likes. It may be noted that the decree

holders themselves have set up a will of their late father Brig.

Rajendra Singh dated 15.04.1990 which is disputed by the

objectors. The objectors are also relying on the earlier will of the

father of the parties dated 29.2.1988 which is disputed by the

decree holders. In fact, both the parties, i.e. the decree holders as

well as the objectors have set up two separate wills of their late

father in the suit for partition filed by the decree holder No.1

pending adjudication in the District Court. The mother of the

parties, on the strength of will dated 29.2.1988 of her late husband

Brig. Rajendra Singh executed a will dated 3.11.1991 in favour of

her two daughters who are objectors in the present execution. It

appears from the admitted facts on record that both parties have

set up the wills of their parents in the suit for partition filed by

decree holder No.1 being Suit No.362/06/91 pending adjudication in

the District Court. Needless to mention here that the parents of the

parties in law were entitled to execute the will during their lifetime

because in terms of consent decree dated 5.9.1989 they were to be

the absolute owner of the suit property. However, Mr.Abhishek

Singh, learned counsel appearing on behalf of the decree holders

has drawn attention of this Court to clause 'F' of the consent decree

dated 5.9.1989 whereby the parents of the parties had agreed that

they will not over-ride the terms of compromise by any will or

deposition and that in case any will is made by them the same shall

be null and void. The effect of this clause will be seen by the Court

before whom the will of the parents is set up by the parties, i.e. in

Suit No.362/06/91 pending in the District Court. At this stage,

expression of any opinion on this clause 'F' contained in the consent

decree dated 5.9.1989 is likely to cause a prejudice to one or the

other party. I am of the view that since the decree holder No.1 has

himself filed a suit for partition basing his claim for partition on the

will dated 15.4.1990 of his late father, this execution at this stage is

not maintainable.

15. The prayer made by the decree holders for issuing the

warrant of attachment in respect of amount of rent of

Rs.71,80,922/- deposited by the erstwhile tenant of the suit

property in the suit for partition pending before the District Court

cannot be granted. This Court cannot intermingle with the

proceedings that are taking place in the suit for partition pending

before the District Court. The rent was deposited by the erstwhile

tenants in the suit for partition pending in the District Court and,

therefore, warrants of attachment in respect of the said deposit

cannot be issued by this Court. The possession in respect of 1/4th

share in the suit property claimed by the decree holders also

cannot be granted to them in the present execution till the time the

Court adjudicates upon the rival wills of their parents set up by the

parties in the suit for partition pending in the District Court.

16. In view of the above and having regard to the facts of

the case, the objections against the execution are allowed and the

execution is dismissed as not maintainable.

April 24, 2009                        S.N.AGGARWAL
vg                                       [JUDGE]