SWARN MALHOTRA Vs. VISHNU PURI

JUDGEMENT

(1.) BY this order, I shall dispose of objections filed by the plaintiff to the auction sale of the property carried on by the Court commissioner under the orders of this Court, according to the terms and conditions settled in presence of both the parties by the Court and incorporated in the public notice of auction sale of the property. Auction of the property took place on 24th February, 2008. During arguments, counsel for the plaintiff did not press other objections except the objection that auction ordered by this court was not in accordance with law and beyond the jurisdiction of the Court.

(2.) COUNSEL for the plaintiff relying upon 2007 AIR Supreme Court 1077 Hasham Abbas Sayyad vs. Usman Abbas Sayyad submitted that this Court lacked inherent jurisdiction to order the auction of the property. The consent or acquiescence of the plaintiff had no effect on the jurisdiction of the Court. He submitted that the auction of the property which was subject matter of partition can be ordered only after a final decree of the partition had been drawn. Where no final decree of partition had been drawn, an auction cannot be ordered and if it is ordered, it is without jurisdiction and the auction should be declared null and void.

(3.) THE present suit was filed by the plaintiff claiming partition of 66, Janpath, New Delhi. She claimed that she was entitled to 1/16th share in the property. During pendency of the suit, at initial stage itself, the parties started efforts for compromise and proposals were made between them for this purpose. Order dated 22nd November, 2005 records that parties had sought time for considering compromise proposals. On 15th December, 2005, a joint request was again made for adjournment in view of the pending proposals. On 24th March, 2006, counsel for the parties told the Court that the property in dispute be sold and proceeds thereof be distributed in accordance with law of inheritance among the parties. The Court was told that they all were making efforts to find a suitable buyer. In the meantime, the pleadings were completed and the matter became ripe for framing of issues. However, defendant no. 1 died during the pendency of the suit and the name of defendant no. 1 was deleted from array of parties. On 9th January, 2007, again counsel for both the sides told the Court that some modalities of settlement between them were being worked out and they wanted adjournment. A joint request was made by the parties and matter was adjourned. On 18th January, 2007, counsel for the plaintiff stated that in view of the death of defendant no. 1, the plaintiff had become entitled to 1/12th share in the property. Looking at the attitude of the parties of merely seeking adjournments, the Court considered that there was no possibility of settlement and proceeded further. In the meantime, plaintiff moved an application under order 6 Rule 17 CPC for amendment of plaint whereby she wanted to amend the plaint to the effect that after death of defendant no. 1 (mother of the plaintiff), she had become entitled to 1/12th share in the property. The amendment application was not opposed by defendants and was allowed. There was no dispute in respect of shares of defendant nos. 6 to 14 inter se. The dispute was only in respect of share of the plaintiff and defendant nos. 2 to 5. That dispute arose after death of defendant no. 1. Ostensibly, prior to that, the defendants had not disputed share of the plaintiff being 1/16th. However, the parties again mooted a proposal for sale of the property in question. However, this Court did not allow the same in view of the dispute raised by the plaintiff regarding her share. She was claiming 1/12th share while defendants were conceding 1/16th only.