Full Text
HIGH COURT OF DELHI
KRISHAN KUMAR MEHRA ..... Petitioner
Through: Mr. Dharmendra Kumar Mishra and Ms. Sunita Saxena, Advocates.
(M:9818800830)
Through: Mr. Vishwa Bhushan Arya, Advocate. (M:8920561855)
JUDGMENT
1. The present petition challenges the impugned judgment and order dated 23rd August, 2017, passed by the Ld. ADJ-04 (South East), Saket (hereinafter “Trial Court”) in Civil Suit No. 208039/2016 titled Shir Krishna Kumar Mehra v Shri Roop Lall Mehra by which the application filed by the Respondent No.2/Maj. Prem Kumar Mehta/Defendant No.2 (hereinafter “Defendant No.2”) seeking leave to deposit 1/5th share of the sale proceeds of the Defendant No.1 was dismissed. The said application was duly supported by the Petitioner Sh. Krishna Kumar Mehra/Plaintiff/Petitioner (hereinafter “Plaintiff”) and the Respondent No.3/ Defendant No.3 (hereinafter “Defendant No.3”) & Respondent No.4/ Defendant No.4 (hereinafter “Defendant No.4”). The only contesting party is Defendant No.1/Respondent No.1/Sh. Roop Lall Mehra (hereinafter “Defendant No.1”). 2021:DHC:4337 Facts
2. The parties to the present revision petition are four sons and one daughter of Late Shri. Pyare Lall Mehra, who passed away on 1st November, 2008. Late Shri. Pyare Lall Mehra was the absolute owner of property bearing No. J-17, Jangpura Extension, New Delhi, admeasuring 279 sq. yards (hereinafter “suit property”). The suit property has a ground floor, first and half of the second floor constructed. As on date, the possession of the ground floor is with Defendant No.2. Defendant No.1 is in possession of the first floor and his son and his family are living on the second floor. In effect, therefore, the first and second floor are in the possession of and being enjoyed by Defendant No.1.
3. The suit for partition being CS(OS) No.395 of 2009 titled Krishan Kumar Mehra v. Shri Roop Lall Mehra & Ors., was filed by the Petitioner/Plaintiff (hereinafter “Plaintiff”) seeking partition and rendition of accounts in respect of properties belonging to his father including movable and immovable property. In this suit, a preliminary decree was passed on 21st December, 2009, by a ld. Single Judge of this Court in the following terms:
4. The Court had, vide the same order, appointed a Local Commissioner to inspect the suit property and submit a report as to whether the suit property can be partitioned by metes and bounds. However, the Local Commissioner reported that a physical metes and bounds partition would not be possible. Accordingly, the High Court directed that an inter-se bidding be conducted between the parties.
5. In the inter-se bidding, sealed covers were stated to have been placed by the parties before the Local Commissioner and Defendant No.2 offered the highest price of Rs.10,40,00,000/-. Subsequently, an application bearing IA No.700/2012 was filed by Defendant No.2 in CS (OS) 395/2009 seeking permission to file a compromise agreement between Plaintiff and Defendant No.2 to 4, to jointly acquire the suit property from Defendant No.2. In this application, Defendant No.2 sought to satisfy his payment obligation of the bid amount by deposit of only 1/5th share, being the share of Defendant No.1, stating that the other parties being Plaintiff and Defendant Nos.[3] to 4 had agreed to not claim their shares in lieu of retaining joint possession of the suit property. The said application was dismissed by the learned Single Judge of this Court vide order dated 12th January 2012 on the ground that all parties had not consented to the compromise agreement. Therefore, the High Court directed Defendant No.2 to deposit the balance share of the bid amount i.e., 8,32,00,000/- within sixty days from the date of the order after setting off only his own share of Rs. 2,08,00,000/- being 1/5th of the bid amount.
6. This order dated 12th January, 2012 was carried in appeal to the Division Bench of this Court. In these proceedings being FAO (OS) 103/2012 titled Krishna Kumar Mehra v. Roop Lall Mehra. Vide order dated 6th March, 2012, the Division Bench directed Defendant No.2 to deposit 1/5th share of the bid amount. Accordingly, Defendant No.2 deposited the sum of Rs.2,09,04,000/- in the Court, which constituted 1/5th share of the total bid amount including interest for late deposit. Vide final order dated 26th March, 2012 in this appeal, this amount was accepted as the final deposit to be made by Defendant No.2, and the order dated 12th January, 2012 was set aside. The Court agreed that the bid amount can only be directed to be deposited qua Defendant No.1, since the other parties had made a joint request to forego the remaining amount. The relevant extract of this order dated 26th March, 2012 is as under: “There is now compliance in terms of the impugned order subject to the deposit of the amount during the course of the day alongwith the interest within three days. In our considered view, the same should put the controversy at rest as once the other parties are together (and make a joint request), amount can only directed to be deposited qua respondent no.1 and to that extent the impugned order is liable to be set aside.”
7. This order dated 26th March, 2012 was then assailed before the Supreme Court in CA No. 7190-7193 of 2013 titled Roop Lall Mehra v. Krishna Kumar Mehra. Vide order dated 16th July, 2015, the Supreme Court decided as under: “We have heard learned counsel for the parties and are of the opinion that the most appropriate course to adopt in this case would be to have the property auctioned by a local commissioner/Court Receiver. We, therefore, remand the matter to the learned Single Judge to auction the property expeditiously. The civil appeals stand disposed of. Pending applications, if any are disposed of. Status quo, as it exists today.”
8. Thus, the inter-se bidding process came to an end and the auction was to be processed in terms of the Supreme Court order. Upon remand, the High Court permitted Defendant No.2 to withdraw the deposited amount vide order dated 29th October, 2015 in CS(OS) 395/2009. Additionally, it appointed a Court Commissioner for conducting the auction of the suit property.
9. During these proceedings, vide order dated 10th February, 2016, the High Court transferred the suit to the Ld. Addl. District & Sessions Judge (South East) Saket Courts, New Delhi (hereinafter “Trial Court”) in view of change in its pecuniary jurisdiction and the suit was re-numbered to CS(OS) No.341/2016 titled Sh. Krishan Kumar Mehra v. Sh. Roop Lal Mehra & Ors.
10. Subsequently, the auction was conducted on 14th February, 2016, and the report of the Court Commissioner dated 18th March, 2016, recorded that Defendant No.2 was again the highest bidder. As per this report, during this auction, the four siblings i.e., the Plaintiff and Defendants No.2 to 4 wanted to bid jointly but the said request was rejected by the Court Commissioner. Ultimately, the other three siblings being Plaintiff and Defendant Nos.3&4, withdrew in favour of Defendant No.2 who was the sole auction purchaser. Defendant No.2 was ultimately held to be the highest bidder for bid amount of Rs. 11,50,00,000/-. He was again directed to deposit 1/5th of the bid amount.
11. Pursuant to this, an application dated 23rd April 2016 was filed by Defendant No.2 before the Trial Court, submitting that in terms of the auction, Defendant No.1 is only entitled to his 1/5th share, amounting to Rs.2,30,00,000/- and after depositing the same, the auction should be taken as final. They stated that the remaining amount deserves to be set off against the share of the Plaintiff and Defendant Nos.2-4, as these other parties were willing to forego their share in lieu of joint ownership of the suit property with Defendant No.2. The case of Defendant No.2 was that Defendant No.1, accordingly, should take his share of the consideration amount and vacant possession of the property ought to be handed over to Defendant No.2, Plaintiff and Defendants Nos. 3 & 4. The application moved by Defendant No.2 was duly supported by the Plaintiff and other Defendants except Defendant No.1. The prayers sought in the application filed by Defendant No.2 with the endorsement of the Plaintiff and Defendant Nos.[3] & 4 are as under:
Eighty Five lacs) as already deposited, my kindly be deposited as Fixed deposits at the earliest, as there is loss of interest which might have been accrued with the said amount.
12. Defendant No.1 objected to the said application on the ground that on a conjoint reading of Section 7 of the Partition Act, 1893 (hereinafter “Partition Act”) and Order XXI Rule 72, 84, 85 CPC, Defendant No.2 is required to deposit the entire amount. As per the Defendant no.1, the only set off that is permissible under law is to the extent of the share of the auction purchaser. In Reply to the objection, Defendant No.2, 3, and 4 and the Plaintiff said that the objection was a part of the delay tactics on behalf of the Objector as the suit property is in Defendant No.1’s possession. However, this application has been rejected by the Trial Court vide order dated 23rd August, 2017 which is the subject matter of the present revision petition. Vide the said order, Defendant No.2 was directed to deposit 25% of the bid amount after setting-off only his own 1/5th share on 25th September 2016 and deposit the entire sale consideration fifteen days thereafter.
13. In the revision proceedings, this Court vide order dated 8th November, 2017 directed the Plaintiff to deposit with this Court, the remaining sale consideration of the share of Defendant No.1, i.e., 1/5th of the bid amount, minus 1.85 crores already deposited with the Executing Court/Trial Court. Accordingly, Rs. 45 lakhs stand deposited by the Plaintiff, retained in an FDR. The Court also observed that the Defendant No.1 would not be entitled to any interest accrued on his share in the purchase amount, in case he ultimately fails. On 08nd November, 2017, the following order has been passed by the Court in this revision petition:
Submissions
14. Mr. Mishra, ld. Counsel for the Plaintiff, submits that despite Defendant No.2 and the Plaintiff having already deposited the complete share of Defendant No.1, which is his only legal entitlement, he is objecting to the final decree being passed in a completely unjustified and incorrect manner. He relies upon the following contentions to support his argument:
(i) Defendant No.1 is merely creating impediments in view of the fact that he continues to remain in possession of the first floor and the second floor. His legal rights are fully secured as his 1/5th share is secured and deposited before the Court and the same is available for withdrawal by Defendant No.1. Since Defendant No.1 is not on cordial terms with his other siblings, he continues to raise objections in this manner.
(ii) This attitude is highlighted by the fact that the procedure of bidding is no longer objected to by Defendant No.1, as has been recorded in the impugned order. Defendant No.1 does not seek setting aside of the auction either. However, he insists that the entire purchase money ought to be deposited. Even when the Plaintiff and Defendant No.2,3&4 are willing to let Defendant No.1 buy the property by payment of auction price, he does not have any intention to buy the suit property.
(iii) The four siblings, two of whom are not resident in India, wish to develop the property together and have their separate units for their own use and occupation as the same is the property purchased by their father. Therefore, the only legal question that arises is in respect of whether the set-off of the entire share of the Plaintiff and Defendants No. 2, 3 & 4 can be allowed or not, in the facts and circumstances of this case. It is his submission that the same should be allowed as the other parties are willing to forego their shares and there is no bar against the same.
(iv) Moreover, the use and occupation charges of the suit property which is in possession of Defendant No.1 is at least Rs.[1] lakh per floor. However, Defendant No.1 continues to occupy the same, without paying any use and occupation charges.
15. On the other hand, Mr. Arya, appearing for Defendant No.1, submits that the application has been rightly dismissed by the Trial Court and raises three primary submissions:
(i) The first is that the civil revision petition is itself not maintainable under Section 115 CPC read with the first proviso.
(ii) Secondly, since the suit itself is pending, the Plaintiff cannot maintain the present revision petition, as he was not the applicant. He relies upon the proviso to Section 115(1) CPC, to state that it limits the power of revision of the High Court to only those cases where the order under revision, if made in the favour of the party applying for revision, would have finally disposed of the suit. The revision petition is not maintainable as the aggrieved person, i.e., Defendant No.2 is not the revisionist before this Court. Therefore, the Plaintiff has no locus standi to prefer the revision petition.
(iii) Thirdly, in any event, he submits that the processes under
Sections 2 to 6 of the Partition Act concerning inter se bidding had all been concluded prior to the Supreme Court order dated 16th July, 2015, directing public auction of the suit property. Once the order of the Supreme Court had been passed on 16th July, 2015, the auction under section 7 of the Partition Act was the only legally permissible method of passing the final decree. Therefore, once the auction has been affected, the procedure prescribed under Section 7(b) of the Partition Act and under the CPC would have to be followed. According to Order XXI Rule 84 CPC read with Order XXI Rule 72 CPC, the only permissible set off is that of the successful bidder’s share and not of the shares of other decree holders, who may be supporting the successful bidder. In view of this, cartelization by the four siblings against Defendant No.1 is not permissible. Findings
16. Heard the counsels for the parties and perused the record. From the facts that emerge in this case, the following issues arise for consideration of this Court:
(i) Whether the present revision petition is maintainable at the instance of the Plaintiff?
(ii) Whether the auction purchaser, i.e., Defendant No.2, has to compulsorily deposit the entire auction amount even though all the other decree holders except Defendant No.1 have agreed to forego payment of their respective monetary shares at this stage?
(i) Maintainability
17. At the outset, it is noted that the Petitioner herein – Mr. Krishan Kumar Mehra, as also Respondent Nos.2, 3, & 4 were the Plaintiff and Defendant Nos.2, 3, & 4 respectively in the suit proceedings before the Trial Court. Defendant No.2 was the auction purchaser, who has deposited along with the Plaintiff a total sum amounting to 1/5th share of the bid amount, i.e., the share of Defendant No.1, cumulatively before the Executing Court and before this Court. The application before the Trial Court, which was dismissed vide the impugned order, was filed by Defendant No.2. The Plaintiff, however, has challenged the impugned order by way of the present revision petition.
18. In so far as the objections raised by the Defendant No.1 as to the maintainability of the review petition and locus standi of the Petitioner are concerned, it is the settled legal position that in a suit for partition, all cosharers are plaintiffs and defendants. Once the preliminary decree is passed, the concept of decree holder and judgment debtor is not strictly applicable as all the parties are decree holders and judgment debtors, as against one another. In Nirode Nath Bannerjee v. Amullya Dhone Bannerjee, AIR 1923 Cal 582, J.G. Wooddroffe J., observed as under:
19. The said legal position has also been confirmed by the decision of the Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna & Ors., (2009) 9 SCC 689. The Supreme Court observed that:
20. Apart from all parties being decree holders in this peculiar situation, in the present case, Defendant Nos.2,3& 4 are supporting the Plaintiffrevisionist. They submit that they are not interested in collecting the monetary amount from the auction purchaser i.e., the Defendant No.2. Their clear stand before this Court is that the Plaintiff and the Defendant Nos. 2 to 4 intend to jointly develop this property, which was purchased by their father, for their own use and occupation. Since Defendant Nos. 2 to 4 are supporting the case of the Plaintiff, the revision petition is not merely at the instance of the Plaintiff but also on behalf of Defendant Nos.2, 3 & 4. They can, in the opinion of this Court, be considered as co-revisionists. Thus, the objection raised by Defendant No.1 as to the locus standi of the Plaintiff is not sustainable, especially because the suit from which the present petition arises is a suit for partition.
21. As regards the submission by Defendant No.1 concerning Section 115 CPC, this Court notes that an order in the application, which was filed by Defendant No.2, if passed, would have finally disposed of the suit itself thereby satisfying the proviso to Section 115(1) CPC. Thus, the objections of Defendant No.1 concerning maintainability of the revision petition are not sustainable.
(ii) On Merits
22. Coming to the objection on merits, the case of the Defendant No.1 is that since Defendant No.2 did not deposit the entire amount of the auction purchase, the final decree is not liable to be passed.
23. Again, it is to be borne in mind that the present suit is not a suit where the auction involves any third party. The suit is between siblings. The auction purchaser is one of the siblings. As already stated, all the parties before this Court are decree holders as a preliminary decree has already been passed in their favour vide order dated 21st December, 2009, holding each of them entitled to 1/5th share of the suit property. The order of the Supreme Court dated 16th July, 2015 directed that the property would be auctioned by the Local Commissioner/ or the Court Receiver. As the subsequent events unfolded, the successful auction purchaser was the Defendant No.2, who is one of the siblings. The Defendant No.2, under orders of this Court, has deposited the 1/5th share. The facts in the case at hand are peculiar, inasmuch as the other three decree holders do not insist on their share being paid in monetary terms. The only contesting party is Defendant No.1 i.e., one of the brothers, who is in occupation of the suit property, and whose monetary share has already been deposited by Defendant No.2 and the Plaintiff with the Court. However, Defendant No.1 still refuses to vacate the suit property. It was under such circumstances that the application seeking permission to deposit only the share of Defendant No.1 and setting off of the bid amount against the share of the Plaintiff, Defendant No.2,3&4 came to be moved before the Trial Court. In the application, the stand of Defendant No.2 was that since Defendant Nos.[2] has deposited the amount of Rs.1.85 crores already, Defendant Nos.2, 3 and 4 and the Plaintiff should further be permitted to deposit the remaining amount of Rs.45 lakhs with the Trial Court to complete the share of the Defendant No.1. The Trial Court has rejected this application holding that since the auction sale was for the entire suit property and not for 1/5th share in the suit property, Defendant No.2 had to therefore submit the entire bid amount setting off only his own share within fifteen days. It is this reasoning which is assailed before this Court.
24. The 1/5th share of Defendant No.1 amounts to Rs. 2,30,00,000/-, in view of the highest bid of Rs. 11,50,00,000/- placed by the Defendant No.2 for the entire suit property. It has also become abundantly clear during the hearing of this revision petition that Defendant No.1 is not willing to purchase the suit property for the bid amount. Nevertheless, he continues to occupy a substantial portion of the suit property ever since the suit has been filed. Resultantly, all the other siblings have been deprived of the use and occupation of their shares in the suit property except to the extent that the ground floor is in occupation and possession of Defendant No.2.
25. The only argument of Defendant No.1 on the merits of the case is that the set-off would not be permissible, except to the extent of the share of the Defendant No.2 who is the Decree Holder, who later purchased the property in view of Section 7 of the Partition Act.
26. Under the scheme of the Partition Act, Sections 3 to 6 permit inter se sale and purchase of shares of various parties among themselves by seeking the highest price. The order of the Supreme Court directed the auctioning of the suit property by a Court Commissioner. Such an auction, as per the parties, was directed to take place under Section 7 of the Partition Act. Section 7 of the Partition Act reads as under:
27. Apart from Section 7 of the Partition Act, Order XXI Rules 72 & 84 CPC require consideration. Order XXI Rules 72 and 84 CPC read as under:
28. A perusal of the said rules shows that, if the decree holder purchases a property with permission of the Court, the share of the decree holder, who is the purchaser, can be set off and the Court can then enter upon satisfaction. In this case, the question is whether the other decree holders’ share can be set off against the purchase money to be deposited. As noted above, Section 7 provides that for the properties which are directed to be sold under the Partition Act. The provisions of CPC would apply only ‘as far as practicable’. In effect therefore, there is no strict application of the provisions of the CPC as the Legislature was conscious of the fact that in partition suits, an auction could also involve one of the co-sharers or decree holders purchasing the suit property. The strict applicability of the provisions of Order XXI CPC can thus be relaxed by the Court while exercising its discretion.
29. This is also clear from a reading of the judgment of the Andhra Pradesh High Court in Pabba Satyamma v. Pabba Sathyamma and Ors., 2010 (6) ALT 52. In this case, the High Court held that mere irregularity in the procedure of the auction sale is ipso facto not sufficient to vitiate the auction sale proceedings. Substantial injury to the person complaining has to be established before the Court. The Court further observed that the phrase ‘as far as practicable’, in effect, means that the Court ought to have acted fairly and reasonably with due application of mind. The observations of the Court read:
30. The strict applicability of Order XXI CPC as is canvassed by Defendant No.1 is, therefore, in the opinion of the Court, not ‘practicable’ in the case at hand.
31. On a careful consideration of the facts of the case, it is clear that the only intention of Defendant No.1, who is the only contesting brother, is to continue to enjoy the property without incurring any occupation charges. While Defendant No.1’s share is deposited, insisting on the technical plea requiring Defendant No.2 to deposit the entire purchase amount while allowing setting off only Defendant No.2’s share is to defeat the intent and purport of the preliminary decree which demarcated his share to only 1/5th share of the suit property. Since, in these partition suits, all the parties are decree holders to the extent of 1/5th portion of the suit property, in the opinion of this Court, there is no provision in law, which would bar any or some of the decree holders to forego their monetary shares, especially in family matters of this nature. The Court would be taking a very pedantic approach, if such a technical plea came in the way of final disposal of such a matter, while safeguarding the interest of all the parties.
32. There is also another reason why the Court is of the opinion that this would be the correct course of action. Even if Defendant No.2 brings the entire bid amount minus his own share of the bid amount, after releasing the 1/5th share of Defendant No.1 since none of the decree holders wish to accept the monetary payment, the remaining amount would have to be merely refunded to Defendant No.2. This entire exercise would be nothing but an irrational and futile exercise. The Supreme Court directed auction of the property which has been duly complied with. The rationale behind set off under Order XXI Rule 72 CPC read with Section 73 has also been captured by the Madras High Court in A.M.A Murugappa Chettiar v S.M.A.M Ramasami Chettiar AIR 1935 Mad 893 the Court observed as under: “Provided that if there are several decree-holders entitled to rateable distribution, the purchase money shall be paid into Court, lands some support to the learned, counsel's argument, but those words 1 must reject as being repugnant to the provisions already mentioned. Under Section 121, Civil P.C., the rules in Schedule 1 must be regarded as a part of the body of the Code, but the High Court may alter or annul them by following the procedure prescribed in part 10 and Section 128 goes on to enact that the High Court has power to make rules inconsistent with those in Schedule 1. Rule 199 of the Civil Rules of Practice (the rule in question) occurs in the body of the rules made under the previous Code of Civil Procedure, to which Section 157 of the present Code applies. That section says that the rules made under the repealed Code shall have operation only "so far as they are consistent with this Code," i.e. the present Code. I am therefore prepared to hold that Rule 199 to the extent to which it is opposed to, and inconsistent with, the provisions of Schedule 1, cannot take effect. In to Reference under Stamp Act 1914 Mad. 652 does not, in my opinion, lay down any general rule in the opposite sense. The inconvenience and hardship that results, should the contrary view prevail, is obvious Let us suppose that the amount due to the decree holder purchaser is Rs. 20,000 and to the rival decree-holder Rs. 400 (i.e., one fiftieth of the other amount). Let us further suppose that the amount of the bid is Rs. 10,200. The decree, holder would then be entitled to Rs. 10,000 and the opposite party to Rs. 200. According to the respondents' contention, although the amount due to the other person is Rs. 200 only, the decree-holder is nevertheless bound to bring into Court the entire sum of Rs. 10,200. It is with a view to avoid this result that the various provisions to which I have referred, have been enacted; it would be a barren formality to require the decree-holder to bring in the Rs. 10,000 to which he himself is entitled. I am therefore of the opinion that the only amount that the petitioner was bound to bring into Court was the sum due to those decree-holders whose execution applications were pending on the date of the sale.”
33. Following the said rationale, this Court has no doubt that the correct course of action would be to allow Defendant No.1 to obtain his share of 1/5th of the monetary value of the bid amount and dispose of the remaining suit as settled between the parties.
34. Furthermore, the inclusion of Order XXXII A CPC in respect of suits relating to the matters concerning the family would also show that there is a duty upon the Court to endeavour to settle disputes between the parties. Order XXXII (A) Rule 3 CPC reads as under:
35. A careful perusal of the above provisions shows that to the extent possible, and so long as it is consistent with the nature and circumstances of the case, the Court is duty bound to assist the parties in arriving at an amicable settlement. In the present case, the Plaintiff and the Defendant Nos.[2] to 4 have, in effect, resolved their disputes. They have agreed to use and occupy jointly the suit property, which was purchased by their father. Plaintiff and the Defendant Nos.[3] and 4 have agreed not to insist on receipt of their share of the monetary consideration by the auction purchaser, i.e., Defendant No.2.
36. The only factor to be borne in mind by this Court while proceeding in this direction is to ensure that none of the legal rights of Defendant No.1 are prejudiced in any manner. Defendant No.1’s rights, even if the entire money is deposited as is requested by him before the Trial Court as well as before this Court, would still be to limited to receipt of his 1/5th share. Since the said 1/5th share has already been deposited in the Court, Defendant No.1 was free to withdraw it but he has deliberately chosen not to do, only to raise the objection of non-deposit by Defendant No.2 thereby enabling him to continue to remain in occupation of the premises without any payment.
37. On a query put by the Court, Defendant No.1’s counsel has submitted that the entire first floor is in the occupation of the Defendant No.1 and the second floor, which is partly constructed, is in possession of Defendant No.1’s son and his family. In effect, therefore, despite having a right only in respect of 1/5th share of the property, Defendant No.1 is enjoying roughly 2/3rd of the constructed areas of the property. In other words, even though Defendant No.1 has the legal title over merely 20% of the suit property, he is enjoying 66% of it.
38. This shows that the entire objection of Defendant No.1 is completely inequitable, inasmuch as the other siblings having agreed not to sell their shares but to instead physically occupy their shares of the property concerned, the decree ought to be held as having been satisfied qua all parties upon deposit of 1/5th of the bid amount. The phrase ‘as far as practicable’ in Section 7 of the Partition Act vests considerable discretion in the Court, especially when dealing with partition disputes between family members, where the purchaser is also a family member and the decree holders, whose share constitute 4/5th of the suit property, are supporting the auction purchaser. Moreover, the objections of the Defendant No.1 against his own siblings are spiteful to say the least. The legislative mandate under Order XXXII A of the CPC is to expedite, endeavour and assist the parties in arriving at a settlement, which in this case would translate to ensuring that the legal rights of Defendant No.1 are not prejudiced while at the same time enabling the recording of the amicable resolution of disputes amongst other siblings.
39. Some other relevant factors which support the above conclusion of this Court are:
(i) The property in question is a prime property in South Delhi where rentals are on the higher side.
(ii) Since the deposit of the amount which constitutes the entire share of the Defendant No.1, was directed to be deposited by this Court on 8th November, 2017, four years have passed. The Court had recorded, vide the said order that Defendant No.1, would not be entitled to any interest in the sale consideration once the entire amount has been deposited.
(iii) All the siblings are senior citizens and any further delay in a final resolution of this dispute would result in considerable prolongation. The suit itself was filed in 2009 and 12 years have already passed. Various rounds of applications, appeals, have already been exhausted by the parties concerned. All along it appears that Defendant No.1 being in possession of 2/3rd of the suit property, took advantage of this possession and continued to raise frivolous objections.
40. Accordingly, this Court holds that the objections raised by Defendant No.1 are not tenable. Under such circumstances, the present revision petition is liable to be allowed in the following terms:
(i) The Defendant No.1 and his family, shall vacate the first floor and second floor of the suit property in their occupation within 6 weeks from the date of judgment and the keys of both the floors shall be deposited with the Trial Court.
(ii) Upon the keys being deposited before the Trial Court, the sum of Rs. 1.85 crores lying deposited with the Trial Court, shall be released on the same day by way of a bank transfer/Demand Draft in favour of Defendant No.1. The remaining 45 lakhs lying deposited before this Court shall also be released within a week of the keys being deposited with the Trial Court, by way of bank transfer/demand draft in favour of Defendant No.1.
(iii) Upon the receipt of the sum of Rs.2.30 crores, Defendant No.1
(iv) The Trial Court shall pass a final decree of partition and hand over the keys of the property to the Defendant no.2, in the presence of Petitioner, Defendants 3 & 4 or their respective counsel.
(v) In view of the fact that Defendant No.1 has enjoyed the use and occupation of the property beyond his share and has intentionally delayed the passing of the final decree in the suit as also in view of the order dated 8th November, 2017 passed by this Court, the interest, which has accrued on the sum of Rs.2.30 crores shall be paid to Defendant No.2.
(vi) Additionally, costs of Rs.[1] lakh shall be paid by Defendant
41. This revision petition is allowed in the above terms. All pending applications are disposed of in the above terms.
42. The matter shall be listed before the trial court on 2nd February, 2022 for ensuring compliance of the above orders.
43. A copy of this order be sent to the Court of Ld. ADJ-04 (South East), Saket in Civil Suit No. 208039/2016 titled ‘Krishna Kumar Mehra v. Roop Lall Mehra. website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority/entity or litigants.
PRATHIBA M. SINGH JUDGE DECEMBER 22, 2021 dk/SK/MS