Delhi High Court
Sh. Hem Raj & Ors. vs Sh. Nihal Chand & Ors. on 3 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P.No.115/2014 & C.M.Nos.12897-12900/2014
% 03rd December, 2014
SH. HEM RAJ & ORS. ......Petitioners
Through: Mr.B.L.Gupta, Advocate.
VERSUS
SH. NIHAL CHAND & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This is a wholly frivolous and a malafide petition under Section 115
of the Code of Civil Procedure, 1908 (CPC) filed by three defendants to a
suit for partition, and who do not want to vacate the suit property, although
the suit property has been auctioned, auction purchaser has deposited the
price and the price has to be equally divided between the parties. Challenge
is in fact to the consent order dated 25.3.2014 and therefore in fact this
petition against a consent order does not lie.
2. By the order dated 30.1.2014, the trial court recorded the aspects that
the preliminary decree dated 20.1.2010 has become final after dismissal of
the first appeal against the same by a learned Single Judge of this Court in
RFA No.310/2010. A local commissioner was appointed thereafter for final
decree proceedings, who gave his report with respect to modes of partition
and which report stated that the property is incapable of division by metes
and bounds, and the suit property could not be re-constructed because none
of the parties agreed to bear the costs of re-construction. Consequently,
auction proceedings were conducted pursuant to the order dated 21.8.2013,
which order has been re-produced in the order dated 30.1.2014, and auction
price of the suit property being house no.635, Illaka No.13, Pul Mithai, Gali
No.1, Patari Nahar, Arunalane, Azad Market, Delhi was Rs.47 lacs, and the
auction purchaser has deposited 25% i.e. 12 lacs. Accordingly, the trial
court directed that after deducting the expenses of the auction and the fees of
the court auctioneer, parties were to vacate the suit premises and receive
their respective share of the sale proceeds within eight weeks.
3. The petitioners who are three of the parties/defendants in the suit for
partition, in fact on 25.3.2014 recorded their statements conceding that they
would hand over possession to the auction purchaser on or before 31.7.2014.
The statements of the petitioners herein and the order of the court dated
25.3.2014 read as under:-
"M. No. 10/14
25.03.2014
Present: Sh. B. L. Gupta, ld. counsel for the applicants along with
applicants no. 1(b) and 1(c) in person.
Ld. counsel for the non-applicants.
Part arguments heard.
During arguments, ld. counsel for the applicant submits that
applicants are ready to make statements. Let statements of applicants be
recorded.
Statements of applicants no.1(b) and 1(c) and ld.counsel for
applicant no.1(a) are recorded.
Ld. counsel for the non-applicants submits that he has no
objection if the application of the applicants may be allowed in terms of
the statements made by the applicants today in this court.
This the application is disposed of in terms of the statements
made by the applicants before this court with directions that applicants
shall remain bound by their statements made by them before this court
and in case of breach of undertaking given by them in their statements
shall cause severe consequences to the applicants.
With these directions, application is disposed of. File be
consigned to Record Room.
Jitendra Kumar Mishra
ADJ-09, Central,
Tis Hazari Courts, Delhi
25.03.2014 (ksb)
M. No. 10/14
in CS No.244/06
25.03.2014
Statement of Sh. Hem Raj, S/o. Late Sh. Pyare Lal, aged about 52
years, R/o. H. No. 2408, Premgali Tikona Park, Punjabi Basti, Old
Subzi Mandi, Delhi-110007 (applicant no.1(c)).
On S.A.
I am in possession along with other applicants at present of the
suit premises. I am ready to vacate the suit premises and handover the
peaceful vacant possession of the suit premises to the auction purchaser
namely M/s. Vrindavan Build Con Pvt. Ltd. on or before 31.07.2014. I
undertake to abide by my statement. I have made the statement with
my own free will, without any pressure or compulsion whatsoever
from any corner.
RO & AC.
Jitendra Kumar Mishra
ADJ-09, Central,
Tis Hazari Courts, Delhi
25.03.2014 (ksb)
Statement of Sh. Rakesh Kumar, S/o. Late Sh. Pyare Lal, aged
about 35 years, R/o. H. No. 2408, Premgali Tikona Park, Punjabi
Basti, Old Subzi Mandi, Delhi-110007 (applicant no.1(b)).
On S.A.
I am in possession along with other applicants at present of the
suit premises. I am ready to vacate the suit premises and handover the
peaceful vacant possession of the suit premises to the auction purchaser
namely M/s. Vrindavan Build Con Pvt. Ltd. on or before 31.07.2014. I
undertake to abide by my statement. I have made the statement with
my own free will, without any pressure or compulsion whatsoever
from any corner.
RO & AC.
Jitendra Kumar Mishra
ADJ-09, Central,
Tis Hazari Courts, Delhi
25.03.2014 (ksb)
M. No. 10/14
in CS No.244/06
25.03.2014
Statement of Sh. B. L. Gupta, ld. counsel for the applicants, Ch. No.
Near Court Room no.,36, Tis Hazari Courts, Delhi. Enrol.
No.D/415/89, in the presence of Rajesh Kumar, son of Smt.
Premwati (applicant no.1(a)).
At Bar.
I am counsel for the applicants and have instructions
and competent to make statement on behalf of applicant no.1(a).
Applicant no.1(a) in possession along with other applicants at present of
the suit premises. Applicant no.1(a) shall vacate the suit premises
and handover the peaceful vacant possession of the suit premises to
the auction purchaser namely M/s. Vrindavan Build Con Pvt. Ltd. on or
before 31.07.2014. Applicant no.1(a) shall abide by the statement.
RO & AC.
Jitendra Kumar Mishra
ADJ-09, Central,
Tis Hazari Courts, Delhi
25.03.2014 (ksb)"
4. I fail to understand as to how against a consent order which
specifically states that the petitioners herein stated that they will hand over
the peaceful and vacant possession of the suit premises to the auction
purchaser can be challenged by them. The provision of Section 96(3) CPC
read with Section 141 CPC prevents a person to challenge a consent order,
more so when the consent order is passed as per the statements recorded of
the parties/petitioners herein.
5. Learned counsel for the petitioners did try to urge various aspects
such as the original decree being passed against the dead persons, auction
purchaser having deposited 25% of the amount not within time but after two
days etc. etc., but I fail to accept how at all these arguments can be urged
before this Court not only because no such arguments have been raised by
means of filing of an application before the court below at the relevant stage
when the application had to be filed questioning the auction proceedings, but
thereafter in fact a consent order as per the consent statements of the
petitioners was passed on 25.3.2014.
6. Dismissed.
VALMIKI J. MEHTA, J
DECEMBER 03, 2014
KA
