RAJ KUMAR SETH Vs. PAWAN KUMAR SETH

JUDGEMENT

(1.) The Petitioner - Mr. Raj Kumar Seth and the Respondents - Mr. Pawan Kumar Seth and Mr. Vijay Kumar Seth are the three sons of late Mr. K.K. Seth. A suit for partition was filed by Mr. Pawan Kumar Seth in respect of the suit property E-2/11, Krishna Nagar, Delhi-110051. A settlement was entered into between the brothers on 24 th April, 2010 and the suit was decreed on 10th May, 2010. The terms of the settlement are as under:

(2.) As per the above settlement, the brothers agreed to divide the property in three equal portions and the exact portions were also demarcated. Two of the brothers i.e., Mr. Pawan Kumar Seth and Mr. Vijay Kumar Seth had the option of selling out orconstructing their respective portions, however, until the said construction was started, Mr. Raj Kumar Seth would not be asked to vacate the premises. After the settlement was entered into, according to the Petitioner-Mr. Raj Kumar Seth, no application was made for sanctioning of plans for construction and thus, he cannot be asked to vacate the portion of the property, which is under his occupation.

(3.) In effect though the brothers agreed for one-third share each in the property, the manner in which the agreement was drawn showed that the practicable implementation of the same had become difficult, and in effect Mr. Raj Kumar Seth continued to remain in his portion of the property, which was larger than the portion which fell in his share. An execution petition to enforce the settlement decree came to be filed,in which the executing court came to the conclusion that there were reciprocal promises which were imposed. The court held that execution of the decree is not possible as there were obligations on all the parties and the executing court cannot go behind the decree. The observations of the executing Court are relevant and are set out below: