BIKRAMAJIT SINGH Vs. BISHWAJEET SINGH

JUDGEMENT

(1.) The present appeal is directed against the order dated 17.5.2007 whereby the application being IA No. 5783/2007 filed by defendant No.1 has been dismissed and order dated 20.2.2007 reiterated. In order dated 20.2.2007, it was agreed by the counsel for the parties that property No. 54, Friends Colony, New Delhi be sold and the purchaser will be given vacant possession. In order dated 17.5.2007, liberty has been granted to the appellant/defendant No.1 to participate in public auction to the exclusion of his share and purchase the share of other parties.

(2.) Learned counsel for the appellant states that after preliminary decree dated 9th December, 1997 was passed, the appellant herein has purchased one- fourth share of a co-defendant and has become 50 per cent owner of the property. He states that the parties to the suit had not filed any application for sale of the property and therefore the learned Single Judge has misdirected himself in passing an order for sale of the immovable property by public auction. Learned counsel for the appellant relies upon Section 3 of the Partition Act.

(3.) It is an admitted position that preliminary decree of partition was passed on 9th December, 1997. It was declared and held that the appellant/defendant No.1 and defendant Nos. 2 and 3 along with the plaintiff have 25 per cent share each in the property. Thereafter defendant No.2 in the suit transferred his 25 per cent share in the immovable property in favour of the appellant/defendant No.1. The preliminary decree was thereafter modified and it was recorded that the share of the appellant/defendant No.1 shall be 50 per cent.