RAJ GOPAL SAXENA Vs. NISHA GOPAL SAXENA

JUDGEMENT

(1.) THE present appeal is directed against an order of the learned Single Judge dated 11th August, 2013 dismissing the appellants execution petition.

(2.) THE facts necessary for deciding this case are that the appellant and the respondents are brothers; they entered into a settlement on 22.5.2008 which was embodied in a compromise decree, in Suit No.179/2004. In terms of the compromise decree, the appellant was entitled to the first floor and portions above in property No. B -5/111, Safdarjung Enclave, New Delhi. The respondents on the other hand were entitled to the ground floor thereof. In terms of the compromise, both the parties had a right to sell their respective portions provided they first offered it to the other. The conditions embodied in Clauses 8 and 9 of the compromise decree also specified a time limit of 2 weeks within which the party given the choice of purchasing had to respond. In this case, the respondent sought to sell his share of the property and notified the appellant on 24.2.2010 through Registered AD notice, stating that the property was proposed to be sold for Rs.1.6 crores. The appellant/decree holder, upon receipt of this notice, replied on 8.3.2012. In the reply, the appellant denied that the market value of the property offered to be sold to the third party was Rs.1.6 crores and had stated that "the said Clause does not envisage that the judgment debtor could ask for an unrealistic price for the property which in fact is not a real market price of the property". The reply to the notice went on to state that the appellant was ready and willing to purchase the property. However, no figure was mentioned. After expiry of the period of 2 weeks, the property was in fact sold and the sale deed executed in favour of the third party/proposed vendee.

(3.) IT is urged by the counsel that the learned Single Judge fell into an error in holding that there was nothing objectionable in the respondents entering into an agreement to sell and even accepting Rs.5,00,000/ - as an advance. Counsel relied upon the decision in the case of Patel Rajnikant Dhulabhai vs. Patel Chandrakant Dhulabhai, 2008 (14) SCC 561 to contend that even entering into an agreement to sell amounts to creation of third party interest. In the present case, it is submitted by the counsel, such third party interest was created even before the offer was put to the appellant on 24.2.2010 rendering it a sham.