* + IN THE HIGH COURT OF DELHI AT NEW DELHI C.R.P.No.115/2014 & C.M.Nos.12897-12900/2014 03rd December, 2014 % SH. HEM RAJ & ORS. Through: ......Petitioners Mr.B.L.Gupta, Advocate. VERSUS SH. NIHAL CHAND & ORS. Through: ...... Respondents CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. This is a wholly frivolous and a malafide petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) filed by three defendants to a suit for partition, and who do not want to vacate the suit property, although the suit property has been auctioned, auction purchaser has deposited the price and the price has to be equally divided between the parties. Challenge is in fact to the consent order dated 25.3.2014 and therefore in fact this petition against a consent order does not lie.
2. By the order dated 30.1.2014, the trial court recorded the aspects that the preliminary decree dated 20.1.2010 has become final after dismissal of the first appeal against the same by a learned Single Judge of this Court in RFA No.310/2010. A local commissioner was appointed thereafter for final decree proceedings, who gave his report with respect to modes of partition and which report stated that the property is incapable of division by metes and bounds, and the suit property could not be re-constructed because none of the parties agreed to bear the costs of re-construction. Consequently, auction proceedings were conducted pursuant to the order dated 21.8.2013, which order has been re-produced in the order dated 30.1.2014, and auction price of the suit property being house no.635, Illaka No.13, Pul Mithai, Gali No.1, Patari Nahar, Arunalane, Azad Market, Delhi was Rs.47 lacs, and the auction purchaser has deposited 25% i.e. 12 lacs. Accordingly, the trial court directed that after deducting the expenses of the auction and the fees of the court auctioneer, parties were to vacate the suit premises and receive their respective share of the sale proceeds within eight weeks.
3. The petitioners who are three of the parties/defendants in the suit for partition, in fact on 25.3.2014 recorded their statements conceding that they would hand over possession to the auction purchaser on or before 31.7.2014. The statements of the petitioners herein and the order of the court dated 25.3.2014 read as under:- “M. No.10/14 25.03.2014 Present: Sh. B. L. Gupta, ld. counsel for the applicants along with applicants No.1(b) and 1(c) in person. Ld. counsel for the non-applicants. Part arguments heard. During arguments, ld. counsel for the applicant submits that applicants are ready to make statements. Let statements of applicants be recorded. Statements of applicants no.1(b) and 1(c) and ld.counsel for applicant no.1(a) are recorded. Ld. counsel for the non-applicants submits that he has no objection if the application of the applicants may be allowed in terms of the statements made by the applicants today in this court. This the application is disposed of in terms of the statements made by the applicants before this court with directions that applicants shall remain bound by their statements made by them before this court and in case of breach of undertaking given by them in their statements shall cause severe consequences to the applicants. With these directions, application is disposed of. File be consigned to Record Room. Jitendra Kumar Mishra ADJ-09, Central, Tis Hazari Courts, Delhi 25.03.2014 (ksb) M. No.10/14 in CS No.244/06 25.03.2014 Statement of Sh. Hem Raj, S/o. Late Sh. Pyare Lal, aged about 52 years, R/o. H. No.2408, Premgali Tikona Park, Punjabi Basti, Old Subzi Mandi, Delhi-110007 (applicant no.1(c)). On S.A. I am in possession along with other applicants at present of the suit premises. I am ready to vacate the suit premises and handover the peaceful vacant possession of the suit premises to the auction purchaser namely M/s. Vrindavan Build Con Pvt. Ltd. on or before 31.07.2014. I undertake to abide by my statement. I have made the statement with my own free will, without any pressure or compulsion whatsoever from any corner. RO & AC. Jitendra Kumar Mishra ADJ-09, Central, Tis Hazari Courts, Delhi 25.03.2014 (ksb) Statement of Sh. Rakesh Kumar, S/o. Late Sh. Pyare Lal, aged about 35 years, R/o. H. No.2408, Premgali Tikona Park, Punjabi Basti, Old Subzi Mandi, Delhi-110007 (applicant no.1(b)). On S.A. I am in possession along with other applicants at present of the suit premises. I am ready to vacate the suit premises and handover the peaceful vacant possession of the suit premises to the auction purchaser namely M/s. Vrindavan Build Con Pvt. Ltd. on or before 31.07.2014. I undertake to abide by my statement. I have made the statement with my own free will, without any pressure or compulsion whatsoever from any corner. RO & AC. Jitendra Kumar Mishra ADJ-09, Central, Tis Hazari Courts, Delhi 25.03.2014 (ksb) M. No.10/14 in CS No.244/06 25.03.2014 Statement of Sh. B. L. Gupta, ld. counsel for the applicants, Ch. No.Near Court Room no.,36, Tis Hazari Courts, Delhi. Enrol. No.D/415/89, in the presence of Rajesh Kumar, son of Smt. Premwati (applicant no.1(a)). At Bar. I am counsel for the applicants and have instructions and competent to make statement on behalf of applicant no.1(a). Applicant no.1(a) in possession along with other applicants at present of the suit premises. Applicant no.1(a) shall vacate the suit premises and handover the peaceful vacant possession of the suit premises to the auction purchaser namely M/s. Vrindavan Build Con Pvt. Ltd. on or before 31.07.2014. Applicant no.1(a) shall abide by the statement. RO & AC. Jitendra Kumar Mishra ADJ-09, Central, Tis Hazari Courts, Delhi 25.03.2014 (ksb)”
4. I fail to understand as to how against a consent order which specifically states that the petitioners herein stated that they will hand over the peaceful and vacant possession of the suit premises to the auction purchaser can be challenged by them. The provision of Section 96(3) CPC read with Section 141 CPC prevents a person to challenge a consent order, more so when the consent order is passed as per the statements recorded of the parties/petitioners herein.
5. Learned counsel for the petitioners did try to urge various aspects such as the original decree being passed against the dead persons, auction purchaser having deposited 25% of the amount not within time but after two days etc. etc., but I fail to accept how at all these arguments can be urged before this Court not only because no such arguments have been raised by means of filing of an application before the court below at the relevant stage when the application had to be filed questioning the auction proceedings, but thereafter in fact a consent order as per the consent statements of the petitioners was passed on 25.3.2014.
6. Dismissed. VALMIKI J.
MEHTA, J DECEMBER03 2014 KA