Shweta Marwaha & Anr. vs Vinayak Marwaha
2011 Latest Caselaw 3646 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Pronounced on: 01.08.2011

+            EX.P.125/2010

             SHWETA MARWAHA & ANR      ..... Decree Holders
                     Through :     Ms. Geeta Luthra, Sr.
                     Adv. with Ms.Megha Aggarwal, Adv.

                              versus

             VINAYAK MARWAHA           ...... Judgment Debtor
                    Through :           Mr. Hari, Adv. for JD
                                       No.1.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                         No.

2. To be referred to the Reporter or not?                  No.

3. Whether the judgment should be reported                 No.
   in Digest?

V.K. JAIN, J. (ORAL)

1. The suit was filed by Shweta Marwaha and

Shubhra Marwaha, daughters of late Shri Vinayak Marwaha

against him. The suit resulted in a compromise decree

being passed on 26.05.1995. The suit was decreed in terms

of the family settlement Ex.C-1 and the site plan Ex.C-2

which formed part of the decree.

2. At the time of the settlement, Shubhra Marwaha-

plaintiff No.2 was sixteen years of old whereas plaintiff No.1

- Shweta Marwaha was a major. As per the settlement, the

property bearing No.C-36A, Kalkaji, New Delhi was to be

divided between the parties to that suit. The ground floor

along with one-third undivided share in the land

underneath building was to belong to the defendant -

Vinayak Marwaha, whereas the first and second floor along

with two-third undivided share in the land underneath the

building was to belong to the plaintiffs. The compromise

stipulated that the actual and physical possession of first

and second floor would be given on plaintiff No.2 attaining

the age of 25 years old. She has become 25 years old on

21.02.2004. The consent decree passed by the Court,

therefore, was not executable before 21.02.2004. Computed

from the aforesaid date, the execution has been sought

within the prescribed period of twelve years.

3. The learned counsel for the judgment debtor has

registered the execution on the following grounds:-

(i) Late Shri Vinayak Marwaha owned properties other

than house No. C-36A, Kalkaji, New Delhi and a

petition seeking Letter of Administration for

administration of his estate has already been filed and

is pending.

(ii) The decree of the Court is silent with respect to the

rights in the terrace of the second floor.

(iii) The access of the first and second floor can be

obtained only through the ground floor portion which

had fallen to the share of late Shri Vinayak Marwaha

and which is now in the possession of the objector

Smt. Madhubala Marwaha, who was the second wife of

late Shri Vinayak Marwaha and her daughter, both of

whom are amongst his Class I legal heirs.

(iv) Being a co-owner of the property, the objector and

her daughter have a preferential right to purchase the

share of the decree holders/plaintiffs in the suit

property.

4. I find no merit in any of the objections raised by

the judgment debtor. This being the petition for execution

of a consent decree passed by this Court, need not and

cannot go into the question as to whether late Shri Vinayak

Marwaha owned properties other than property subject

matter of the consent decree and what would be the share

of the parties in that property. Being an executing Court,

this Court cannot go behind the decree and has to execute

the decree as it stands. The pendency of the petition for

grant of Letter of Administration to administer the estate of

late Shri Vinayak Marwaha also has no bearing on the

execution of the decree passed by this Court. The question

as to who is entitled to the terrace of the second floor is an

issue which can be decided later after hearing the parties,

being a matter which can be said to be clarificatory in

nature. But as far as the first and second floor are

concerned, possession of those two floors needs to be

forthwith delivered to the plaintiffs/decree holders in

execution of the consent decree passed by this Court.

5. Coming to the access to the first and second floor,

a perusal of the site plan Ex.C-2 would show that there is a

staircase at the back of the site which leads to the first and

second floor. Obviously, the decree holders/plaintiffs would

be entitled to access the first and second floor only through

staircase without in any manner entering any part of the

premises occupied by the objector on the ground floor.

6. The learned counsel for the objector has expressed

apprehension that if the same entrance is used by the

parties, that may jeopardize the safety of the objector in

case the occupants of the first and second floor come late or

leave the entrance unlocked. That aspect, in my view, can

be taken care of by installing a lock which can be opened

from inside as well as from outside using the same key and

one key of that lock can be retained by the objector whereas

the other key can be delivered to the decree

holders/applicants. If there are three keys of the lock, two

out of them can be given to the plaintiffs/decree holders and

one key can be retained by the objector. It will then be

possible for the objector to lock the door from inside and it

will also be possible for the occupants of the first and

second floor to open the lock from outside in order to access

the first and second floor.

7. For the reasons given in the preceding paragraphs,

be issued warrant of possession of the first and second floor

of property No.C-36A, Kalkaji, New Delhi in favour of decree

holders.

8. The decree holders/plaintiffs will be entitled to use

the first and second floor in terms of the directions

contained in this order.

9. List this matter for hearing on 20th January, 2012

on the question as to who will have rights in the terrace of

the second floor of the suit property.

(V.K. JAIN) JUDGE AUGUST 01, 2011 'sn'