Dr. Baldev Raj Anand & Anr. vs Dewan Chand Decd. Thr.Lr & Ors.
2017 Latest Caselaw 4750 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                    Date of hearing and Order: 5th September 2017.
+    RFA 99/2006
     DR. BALDEV RAJ ANAND & ANR.
                                                      ..... Appellant
                  Through: Mr. Aman Lekhi, Senior Advocate
                              with Mr. R.Anand Padmanabhan,
                              Mr.Kuldeep Gola, Advocates

                         versus

      DEWAN CHAND DECD. THR.LR'S &OR
                                                           ..... Respondent
                         Through:    Mr. Sandeep Thukral, Advocate for
                                     respondent No. 2(c) to 2(f), 3 and 5.
                                     Mr. Pravin Sharma, Advocate for
                                     respondent No. 13, 14, 15 in Review
                                     Pet. No.161/2017.
                                     Mr. Jagmohan Sabharwal, Senior
                                     Advocate with Ms. Seema Singh,
                                     Advocate for Garima Anand.

      CORAM:
      HON'BLE MR. JUSTICE P.S.TEJI
                           ORDER

      %                    05.09.2017
      P.S. TEJI, J. (ORAL)
      C.M. No. 30682/2017 (Directions)

1. By this application filed under Section 151 CPC, the applicant (respondent No. 2C, 2D, 2E, 2F, 3 and 5) seeks approval of proforma draft for proclamation of auction under Order 21 Rule 66 of CPC as directed vide order dated 26.04.2016 in R.F.A. No. 99/2006. The applicants sought the following prayers:-

a. To allow the present application, inter-alia, confirming the above mentioned proposed terms and conditions, guidelines alongwith recommendations as allowed by the Court Commissioners.

b. To include any other terms or conditions to the above list that the court may deem fit in the interests of all the parties including the respondents;

c. To approve and adopt the draft of proclamation of sale along with the proforma of the auction classified to be published in the Newspapers as mentioned in the above proposed terms and conditions, as required under Order 21 rule 66 CPC. Accordingly the said draft for proclamation may either be approved and accepted by this Hon'ble Court as it is being filed, or after necessary amendments and/or suggestions as this Hon'ble Court may deem fit and proper;

d. To issue any other direction and grant any relief in the interest of justice and for the benefit of all the parties."

2. Respondent No. 2 appeared today. The applicant happens to be the respondents in the main appeal. The facts noticed in this case is

that the court below vide its judgment and decree dated 22nd November 2005 passed the preliminary decree with regard to holding the parties entitled to their shares and the plaintiff was declared owner of 1/7th share over the half of the suit property.

3. Aggrieved by the judgment and decree, the R.F.A. No. 99/2006 was filed. The appeal came up for hearing on 10.02.2006 and notice was directed to be issued to the respondents. The matter took a long time and ultimately the matter came up for hearing on 19th February 2015 when this court observed that the appellant did not press the application for the stay (C.M. No. 2214/2006) and the same was dismissed vide order dated 15.05.2007 accordingly. It was also observed that the trial court shall proceed with the matter to pass the final decree and appeal shall be taken up for hearing immediately after passing of the final decree. The record of the trial court was sent back and the trial court was directed to pass the final decree within a period of 8 months from that date and requisitioned the record back after passing the final decree.

4. Thereafter, the matter came up for hearing on 19th November 2015, when it was observed that the appeal was filed against the preliminary decree for partition and there was no stay of passing the final decree. The trial court record was not received back by then and this court directed the Registry to find out the status of the final decree proceedings in the suit in the trial court and the trial court record was called back. The matter came up again on 25th February 2016 and the operative para reads as under: -

"It has been brought to the notice of this court that a final decree has been passed by the trial court and my learned predecessor had directed that after the passing of the final decree, any of the parties, if it is desirous of challenging the final decree, shall file additional grounds challenging the same. Parties are accordingly given an opportunity to file their additional grounds, if they intend to challenge the final decree. All the parties are directed to file their short synopsis not more than five pages alongwith list of judgments relied upon by them."

5. Ultimately, the final judgment was delivered by this court on 26th April 2016 whereby the appeal filed by the appellants was dismissed. The relevant paragraphs 17 to 21 of the order are reproduced herein below:

17. Now remains the question of actual partition of the suit property by metes and bounds. In this regard, the learned trial Court has already observed that the suit property cannot be divided or sub-divided in terms of Master Plan 4.4.3 and therefore, the only method of giving effect to the final decree of partition is to auction the property in a transparent manner and permit the parties to share the sale proceeds in the proportion of 1/7th share each in terms of the judgment and decree passed by the trial Court.

18. In this regard, it may be clarified that so far as auction of the suit property is concerned under Section 3 of the Partition Act, 1893 the other coparceners has a preferential right to purchase. After the price in the open transparent auction is settled an offer shall be given to the legal heirs of respondent No.1 to purchase the suit property and in case they fail to exercise the option in a positive manner, the same shall be then sold to the prospective highest bidder. In order to identify the highest bidder, the suit property deserves to be auctioned in the proportion of 1/7th each of vertical having area of one-half of the entire suit property.

19. I accordingly, appoint Mr. Sanjay Ghosh, Standing Counsel as the Court Commissioner for the purpose of conducting the auction for which he shall devise guidelines including fixation of the earnest money so as to invite serious bids which shall be opened in the presence of the parties.

20. As regards conducting of auction, Mr. Sandeep Kumar, 8860492346 shall also assist the Court Commissioner as a junior counsel to the learned Court Commissioner for the purpose of conducing the auction.

21. The fees of the Court Commissioner is fixed at Rs. 2 lacs and that of the junior at Rs.1 lac, which shall be

shared by all the beneficiaries of the properties in equal proportion."

6. Reading of the aforesaid paragraphs it shows that since the trial court had already passed the final decree, therefore, this court appointed Mr. Sanjay Ghosh, Standing Counsel as the court Commissioner for the purpose of conducting the auction. Perusal of order sheets further shows that after dismissing the appeal, there was another order passed on 31st May 2016 regarding clarification of the earlier order. The application was disposed of but the nature and character of the order dated 26th April 2016 remained the same.

7. After the order dated 26th April 2016, the present application has been filed by the applicant on 17th August 2017 however, the final decree was passed on 7th January 2016.

8. The undisputed facts are that while passing the order dated 19th February 2015 in para 2, it was observed as under: -

"This court is of the view that the trial court shall proceed with the matter to pass the final decree. This appeal shall be taken up for hearing immediately after the passing of the final decree. The parties are given liberty to challenge the final decree in this appeal itself by urging additional grounds."

9. The order dated 25th February 2016 again approved the same. The appeal being R.F.A. No. 99/2016 had been filed against the

preliminary decree dated 22nd November 2015 and against this decree, the RFA has already been dismissed vide judgment dated 26th April 2016. Apparently, the proceedings for passing the final decree was not stayed and the file was sent for passing the final decree, this court was of the opinion to give liberty to the parties to challenge the final decree and add the additional grounds vide order dated 19th February 2015. It has also been argued that the parties were given liberty to urge additional grounds in the present appeal itself to consider the outcome of final decree passed by the court below. As mentioned above, the appeal was filed against the preliminary decree and the same has already been dismissed. It is also apparent from the file that thereafter, neither of the parties filed any additional grounds and even the appointment of the Local Commissioner was not proceeded and nothing has been brought on record to proceed further except the present application, which was filed on 17.08.2017. Nothing has been proceeded in pursuance of the order.

10. In view of the aforesaid, this court is of the considered opinion that the circumstances mentioned above are tantamount to not proceed against the final decree passed by the court below dated 7th January 2016. Although the applicants were given liberty to file the additional grounds or to file fresh appeal against the final decree, nothing has been done in this regard. As a result the proceedings in RFA which has already been dismissed vide order dated 26th April 2016, came to an end and no further directions can be given, as sought by the applicant in the present application. The liberty granted to file the additional grounds against the final judgment could be exercised

during the pendency of the main appeal being R.F.A. No. 99/2006 which has already been decided vide order dated 26th April 2016. The application is accordingly dismissed.

C.M.No. 30683/2017 (Exemption)

Exemption allowed subject to all just exceptions. Application stands disposed of.

C.M.No. 15949/2017 (Exemption)

Exemption allowed subject to all just exceptions.

Application stands disposed of.

C.M.No. 15948/2017 (Delay of 291 days)

By this application filed under Section 5 of the Limitation Act, the applicant seeks condonation of delay of 291 days in preferring the review petition.

Heard.

After hearing both the sides, this court is not satisfied with the explanation for delay occurred in preferring the review petition, therefore, the same is dismissed.

Review Pet. 161/2017 & C.M. No. 15947/2017 (Stay)

By this petition, filed under Section 114 of the CPC read with Order 41 CPC the petitioners seek review of the order dated 26.04.2016. Consequent to dismissal of the application being C.M.

No. 15948/2017 seeking condonation of delay in preferring the review petition, the review petition as well as application for stay preferred by the petitioners is dismissed.

P.S.TEJI, J SEPTEMBER 05, 2017 pkb