Jawahar Lal Khanna vs Shri Jia Lal Khanna
2012 Latest Caselaw 5357 Del

Citation : 2012 Latest Caselaw 5357 Del
Judgement Date : 7 September, 2012

Delhi High Court

Jawahar Lal Khanna vs Shri Jia Lal Khanna on 7 September, 2012

Author: Valmiki J. Mehta

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CS(OS) 1292/1992

%                                                     7th September, 2012

         JAWAHAR LAL KHANNA                                ..... Plaintiff
                      Through:           Mr. S.C.Singhal, Adv.


                      versus


         SHRI JIA LAL KHANNA                               ..... Defendant
                        Through:         Mr. Subodh K. Pathak, Adv.
                                         Mr. Sachin Datta, Adv. for D-3.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

In this suit a preliminary decree was passed on 14.5.2009

giving 1/3rd share to the plaintiff in the properties bearing No.B-III/31,

Lajpat Nagar, New Delhi and XIII/2407-15(New) Teliwara, near Sadar

Bazar, Delhi. This preliminary decree has become final as appeal against

the same has been dismissed by the Division Bench on 23.12.2011 with

costs of `25,000/-.

2. The Local Commissioner has filed a report and it is reported

that the property cannot be partitioned and should be acquired by the parties

by internal auction among themselves.

3. In view of the aforesaid position a detailed order was passed on

5.7.2012 which reads as under:-

1. This suit was decreed on 14.5.2009 passing a preliminary decree giving 1/3rd share to the plaintiff in two properties being B-III/31, Lajpat Nagar, New Delhi and XIII/2407-15 (New) Teliwara, near Sadar Bazar, Delhi. The defendant No.1 filed an appeal, and which appeal has been dismissed by the Division Bench on 23.12.2011 and in fact costs of ` 25,000/- were imposed. This order of the Division Bench as on date is final and binds this Court.

2. I have now to take steps for passing of final decree. A Local Commissioner was appointed by this Court and who has reported that properties cannot be partitioned and therefore the parties should acquire the properties by internal auction among themselves. Obviously, if the parties cannot purchase the properties by internal auction, the same would have to be sold. The defendant No.1 has filed an application which is said to be „objections‟ to the report of the Local Commissioner. These objections have been filed on 12.7.2011. This is actually an application which has to be registered by the Registry. This application be registered by the Registry and be given a number. These objections read as under:-

"1. That the ld. Local Commissioner Sh. G.P. Thareja appointed by this Hon‟ble Court vide order dated July 28, 2010 has filed his report in respect of property bearing No.B-III/31, Lajpat Nagar, New Delhi suggesting that the said property be sold by private auction amongst the

parties to the suit failing which the property may be sold by public auction.

2. That however the learned Local Commissioner at the time of making the suggestion that the said property be sold by private auction amongst the parties to the suit failing which the property may be sold by public auction has failed to consider that defendant No.1 is the absolute owner of the suit property in view of the affidavits dated 10.11.1976 filed by Sh. Din Dayal Khanna and Sh. Jawahar Khanna before the District Judge, Delhi.

3. That the ld. Local Commissioner has further failed to take into consideration the fact that the above mentioned property is also the subject matter of CS(OS) No.4633 of 1992, and number of orders have been passed in the said suit restraining defendant No.1, Sh. Jia Lal Khanna from creating transferring, alienating or creating any third party interest in the suit property. Hence in light of the orders passed in CS(OS) 4633 of 1992 the suggestion made by the ld. Local Commissioner that the said property be sold by private auction amongst the parties to the suit failing which the property may be sold by public auction cannot be accepted.

4. That the defendant No.1 has also filed an appeal against order dated 14.05.2009 being R.F.A. No.70/2009 and the said appeal has been admitted by the Hon‟ble Division Bench. In view of this the suggestion of the learned Local Commissioner that the suit property be sold by private auction amongst the parties to the suit failing which the property may be sold by public auction cannot be accepted.

In view of the above mentioned facts it is most respectfully prayed that the suggestions made by the learned Local Commissioner Sh. G.P. Thareja be dismissed at this

stage.

It is prayed accordingly."

3. In my opinion, these cannot be said to be objections for preventing any further orders being passed for a public auction or a public sale of the properties. The objections of the defendant No.1 are therefore dismissed.

4. Let the parties within a period of four weeks from today get offers from prospective buyers giving the highest price with respect to both the aforesaid properties which are subject matter of the preliminary decree. In case, the parties fail to bring any prospective buyer on or before the next date of hearing, then, the procedure with respect to public auction or newspaper insertion for selling of the properties would be taken up.