ANANT NARAYAN KAJROLKAR Vs. NEETA MADHUKAR KAJROLKAR

JUDGEMENT

(1.) The plaintiff has filed a praecipe in a pending execution application for seeking production of papers and proceedings in the execution application before this court to enable the plaintiff to request this court to direct the execution department to issue warrant of sale in respect of the suit property and to direct the office of the Commissioner of Taking Accounts to proceed to auction and sell the suit property and for appointment of a suitable person as a commissioner to distribute the net sell proceeds from the sale of the suit property. Some of the relevant facts for the purpose of deciding this prayers are as under :-

(2.) On 20th December, 2007 this court passed a consent decree in Suit No. 3279 of 1987. Suit was disposed of in terms of the consent terms arrived at between the parties. In the said suit, the plaintiff had prayed for a declaration that the plaintiff was owner of the 1/2 share of the plot of land described in the plaint and also 1/2 share of the premise constructed thereon and that the original defendant no.1, defendant nos.1(a), 1(b) and 1(c) were the rank trasspasser upon 1/2 share of the plaintiff on the suit land. Plaintiff had also prayed for peaceful, vacant possession and occupation of 1/2 portion of the suit premises. In the said consent terms, it was agreed between the plaintiff and defendant nos. 1(a) to defendant no.1(c) to find a common developer/purchaser to develop/acquire the suit property to effectively enable the plaintiff on the one hand and defendant nos. 1(a) to 1(c) on the other hand to recover and realize their respective 50% share in the ownership and occupancy rights of the suit property. Both parties were permitted to choose to separately negotiate with such purchaser/developer within a period not exceeding six months from the date of the said decree. It was further provided that if the contract for sale/development/redevelopment of the suit property did not materialize or got concluded within a period of six months, either the plaintiff or defendant nos. 1(a) to 1(c) shall be at liberty to apply to this Court for sale of the suit property through this Court on such terms and conditions as this Court may deem fit. It was agreed that both parties shall be entitled to receive 50% of the amount so recovered/realized through such Court sale. On 2nd December, 2008 decree was drawn.

(3.) On 9th February, 2009, plaintiff filed an execution application (539 of 2012) for issuance of warrant of sale of the suit property. On 26th February, 2009, plaintiff filed chamber summons (372 of 2009) in execution application inter alia praying that consent decree be executed and warrant of sale under Order 21 Rule 64 read with Rule 11(J) (ii) of the Code of Civil Procedure, 1908 be issued for sale of the property and for appointment of Court Commissioner for taking Accounts with a direction to proceed to auction and sell the suit property and the Commissioner be directed to distribute the net sell proceeds from the sell of the suit property.