Delhi High Court
Bimal Krishna Khanna vs Kamal Nain Khanna & Others on 14 July, 1999
Equivalent citations: 1999IVAD(DELHI)881, AIR1999DELHI327, 80(1999)DLT769, 1999(51)DRJ462, AIR 1999 DELHI 327, (1999) 37 ARBILR 247, (1999) 51 DRJ 462, (1999) 80 DLT 769
ORDER
Vijender Jain. J.
1. Proceedings started in Seventies after a chequered history seems to be drawing close to finality at least in this Court. After a mammoth hearing lasting over couple of months this order will dispose of long standing disputes between the parties which were originally referred in pursuance of the order made by this Court on February 19, 1978 in Suit No. 947/76 to the sole arbitration of late Shri C. K. Daphtary. He published his award on November, 27, 1980. Award along with the proceedings was filed in this Court on December, 16, 1980. Objections were filed by the parties and following issues arose out of the pleadings of the parties, which were framed on April 28, 1982:
i) Whether the award requires clarification for providing a partition wall/barbed wire fencing as alleged in para 8 of the application under Section 151 (IA 1402/81) and the award requires clarification in that behalf? OPP (1402/81)
ii) Whether the arbitrator has dealt with matters beyond the terms of reference and the award is bad for that reason? OPP
iii) Whether there were errors apparent on the face of the award? OPP
iv) Whether the arbitrator has misconducted himself and/or the proceedings? (The issue includes the pea of bias, ill-will, ill-feeling and prejudice made in para 11 of the affidavit).
v) Whether the arbitrator had preconceived opinions and had arrived at decisions even before he considered the evidence and arguments and had allowed himself to be influenced by Mr. B. K. Khanna and Mr. K. N. Khanna?
vi) Whether the arbitrator had discussions with Mr. B. K. Khanna and Mr. K. N. Khanna and took decisions and gave orders behind the back of the objectors?
vii) Whether the findings of the arbitrator were contradictory? If So, to what effect?
viii)Whether the arbitrator had made any changes in the award after making and published the award and to what effect?
ix) Whether the award requires modification as alleged in para 8?
x) Whether the award relating to interim use of the property amongst owners suffers from errors on the face of the award as mentioned in para 9 of the objection petition no. 1401/81?
xi) Relief.
2. Additional issues were framed on October 20, 1980:
i) Whether the petitioner B. K. Khanna will be deemed to have been served on the filing of the award on January 14, 1981 because of the presence of his counsel before the Registrar on that date and the objection petition filed by him (IA 1401/81) was barred by time?
ii) Whether the award requires modification as alleged in paras 7 and 9 of the objections (IA 1402 of 1981)?
iii) Whether the objection petition (IA 1402 of 1981) is barred by time?
3. This Court (S.S. Chadha, J.) on April 15, 1983 made the award rule of the Court and a decree in terms thereof was passed directing that the award shall form part of the decree. Objections filed by the parties were dis-
missed.
4. Thereafter Petitioner filed an IA 4682/83 in the Court. The said IA was disposed of on MAy 21, 1984 by Yogeshwar Dayal, J. (as his Lordship then was) and the following order was passed. As this order has bearing on the disputes between the parties as same has been a bone of different interpretation said order is reproduced below:
"21-05-84 Present : Mr. L. R. Gupta counsel for Sh. B. K. Khanna. Bawa Shiv Charan Singh, counsel for Sh. K. N Khanna.
Mr. B. R. Sawhney, counsel for Smt. Kamla Rathor.IA No. 4682/83
This application prays for as many as five reliefs. The first relief is that the decree passed by Chadha, J. on 15th April, 1983 in Suit No. 557-A of 1980 may be taken on record of this suit and be treated as preliminary decree. Second relief is that the Award filed by the Arbitrator be taken on the file of the suit and further proceedings in accordance with law be taken thereupon. Third relief is that preliminary decree dated 2.8.1983 passed in suit No. 668 of 1983 be also taken on the record of this suit and proceedings for passing of a final decree after going through the procedure prescribed under order 26 Rule 13 and 14 of the Civil Procedure Code be taken. The fourth relief is that a Local Commissioner be appointed to make the partition of the properties by metes and bound in accordance with shares declared. The fifth relief is that on filing of the report by the Local Commissioner, a final decree of partition be passed.
So far as first relief is concerned, it is not opposed, for simple reason that Suit No. 557-A/80 is merely the same suit which was originally filed as suit No. 878/76. New number 557- A/80 was given to the proceedings which were initiated by way of a petition under Section 14 of the Arbitration Act for filing Award. So the preliminary decree which was passed is really passed in suit No. 557-A/80.
So far as other prayer of the petitioner is concerned that it should be treated as preliminary decree, it may be mentioned that this decree is final so far as moveables are concerned. Also this decree is final insofar as it held that Kamla Rathor has got no share in the immovable property. This decree mentions that both the brothers have equal shares in the immovable property in dispute. It is again final in the sense that the Arbitrator held that the property could not be divided in two equal halfs. But he made the directions that nothing can be done for enabling actual partition of the property till suit filed by Industrial Finance Corporation against M/s B. K. Khanna & Co. and others is decided. Therefore, the decree is preliminary to that extent.
So far as prayer No. 2 is concerned, it has already been followed and as far as prayer No. 3 is concerned, I have discussed in prayer No. 1.
So far as prayers 4 & 5 are concerned, it may be again mentioned that no further proceedings can be taken as per the Award which has been made into a preliminary decree till the suit filed by ndustrial Finance Corporation is decided or the orders passed in the aforesaid suit dated 6th February, 1973 are modified.
The application is decided as per the aforesaid observations.
May 21, 1984 Sd/-
JUDGE"
5. Thus by the order dated May 24, 1984 it was settled that decree passed by S. S. Chadha. J. on 15.4.1983 was final so far as movables were concerned. It was also final insofar as it held that Kamla Rathore had got no share in the immovable property. It was also final that both the brothers had equal shares in the immovable property. It was again final that the property could not be divided into two equal halfs. However, in view of the directions passed in Suit No. 59/73 filed by Industrial Finance Corporation of India against M/s B. K. Khanna & Company, nothing could be done for enabling actual partition of the property till the said suit is decided and only to that extent, the decree was preliminary in nature.
6. It is important to mention from the award itself as to what was the actual difficulty before the learned arbitrator. Learned Arbitrator in its award has stated that "an injunction order was granted in the suit filed by the Industrial Finance Corporation whereby the parties were prohibited from alienating the residential house belonging to two brothers that is the property in question". At page 15 of the award, the arbitrator returned the finding as follows:
"The house was built for residence of the single family and is a ground floor structure. It is, in my opinion, incapable of being reasonably divided into two halfs. If there is a division the annexe would also have to be divided. The whole property was intended to be for occupation by single unit.
"I have seen the property myself and in my opinion, it is incapa ble of being divided into two reasonably livable halfs and compound itself cannot easily be divided so as to fit in the two halves. Ordinarily, one would have ordered that the property should be sold in order to effect a partition but as there is an injunction in a suit filed by the Industrial Finance Corporation of India against, amongst others, the two brothers restraining them from alienating the property, this is not possible until the suit is dismissed."
7. In the meanwhile in the suit filed by the Industrial Finance Corporation of India, an application was moved by B. K. Khanna who has filed the present execution petition. IA No. 3187/88 seeking modification of the interim order made on 6.2.1973. This is how D. P. Wadhwa, J. (as his Lordship then was), ordered on 3.9.1991:
"After further hearing the learned counsel for the parties, I am of the opinion that the order dated 6th February, 1973 as confirmed by order dated 26th September, 1974, needs modification .................................................
Order dated 6th February, 1973 and 26th September, 1974 are, therefore, modified to the extent that there will be no restraint on the sale of the property bearing No. 22, Retendon Road, New Delhi (now known as Amrita Shergil Marg) in the partition suit (Suit No. 878/76 and Suit No. 557A/80)."/BLOCKQUOTE>
8. Lengthy arguments were advanced from both the sides as to the effect and scope of order dated September 3, 1991 through ultimately the suit filed by IFCI and the Union Bank of India was compromised on 27.8.1993. Mr. Aggarwal, learned counsel appearing for K. N. Khanna, objector has contended that the decree dated 15.4.1983 making the award dated 27.11.1980 rule of the court was a preliminary decree. Mr. Aggarwal has contended that as it was a preliminary decree, the execution petition (Ex. No. 173/91) was premature. Mr. Aggarwal has further contended that even if it is assumed that it was a final decree, the said decree has not been drawn pursuant to the provision of Order 20 Rule 6 and Order 21 Rule 11(2) and (3) of the Code of Civil Procedure. He has further contended that no decree has been framed by the Registry of this Court. He has further contended that decree was a preliminary decree in nature and that is why suit Nos. 878/76 and 557/A/80 continued to remain pending even after the judgment dated 15.4.1983 when the Court made the award rule of the court.
9. To buttress his arguments, Mr. Aggarwal has contended that as a matter of fact, the suit of the IFCI was decided on 27.8.1993. Therefore, any execution application filed on the basis of modification of the interim order on 3.9.1991 would not lie as the direction of the Arbitrator was that till the suit of the IFCI is decided nothing further could be done to give effect to the decree. Another contention which was raised by Mr. G. N. Aggarwal was that the decree-holder himself has prayed for appointment of a Local Commissioner in an application at page 621 of the paper-book and final decree could only be passed in terms of sub-rule (3) of Rule 14 of Order 26 read with Order 20 Rule 18. What has been contended by counsel for the objector is that the petitioner cannot take different stands now. He cannot be permitted to urge that a final decree has been passed and his execution application is maintainable. Mr. Aggarwal has contended that in a partition suit, preliminary decree can be amended but final decree cannot be amended. In support of his contention, counsel has cited Kalyan Kumar Basak Vs. Salil Kumar Basak and others :
"In a partition suit, even after the preliminary decree, if on the basis of subsequent events, there are changes in the situa tion including changes in the grouping of shares amongst the parties or acquisition of shares of other co-sharers by some of the co-sharers for which the decree for partition can be suitably moulded, the Court can and should do so and in such circumstances the variation of the preliminary decree can always be made. There is nothing in the Civil P. C. which prohibits passing of more than one preliminary decree if in the facts and circumstances of a case and in consideration of equity and justice, such variation of the preliminary decree is warranted."
10. Another contention which was raised by Mr. Aggarwal was that the decree was not engrossed on non-judicial stamp paper and therefore, the same was not executable. In support of his contention learned counsel for the objector sited Pandivi Satyanandan and others Vs. Paramkusam Nammayya and another , M. L. Manjappa and others Vs. Kalyani Pujarthy and others AIR 1971 Mysore 350, Must. Shahabia Begum Vs. Must.
Pukhraj Begum and others . Mr. Aggarwal has further contended that the same was preliminary decree as no final decree was passed, the application for execution was premature as the preliminary decree is not executable and in his support has cited Venkata Reddy and others Vs. Pethi Reddy :
"The new provision makes it clear that the law is and has always been that upon the father's insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The provision is thus declara tory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here only with the first Proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an official Receiver which has been the subject of a final decision by a competent Court. The short question, therefore, is whether the preliminary decree for partition passed in this case which was affirmed finally in second appeal by the High Court of Madras can be regarded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree proceedings were still going on when the Amending Act came into force the first proviso was not avail able to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word `decision' even in its popular sense means a concluded opinion (see Stroud's Judicial Dictionary 3rd Ed. Vol. I, p.743). Where, therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by aw......................."
11. Mr. Aggarwal has further cited Vishwasrao Vs. Ushabai and another :
"Mr. Parchure, the learned advocate for the respondent No. 2 (original decree-holder) conceded before me that there was no final decree passed by the Court which could justify the execution. What he urged before me was that though the final decree was not prepared by the trial Court, still all the preliminaries were complete, inasmuch as the Commissioner was appointed and he had submitted his report. No only that, but the objection raised by the contesting parties were also considered by the Court and the Court expressed its views regarding the report submitted by the Commissioner. What he urged before me was that eventually the Court was bound to pass a decree in pursuance of the Commissioner report, though in fact no decree was passed. It was his contention, that the Court has practically taken a view relying on the report of the Commissioner that the ground floor should be allotted to the decree holder. What the trial Court did, according to him, was only to expedite the matter and put the decree holder in possession of the ground floor, particularly when the decree holder was occupying only the tenanted premises. What he wanted to say before this Court was that, there was merely an irregularity and not an illegality. I find myself unable to accept this argument, because according to me it is a clear case where the trial court has acted without jurisdiction in entertaining the execution application without any decree. In fact, the order issuing warrant of possession and the further executing warrant of possession, has been completely vires, particularly when no decree justifying this execution was passed till then. Mr. Parchure, the learned advocate for the respondent No.2 wanted this Court to take purely equitable view of the matter. It will be hard for this Court to close its eyes to the bald realities which prevailed before the executing Court. The over-enthusiasm not only of the decree-holder, but equally of his advocate to put in the execution application even in the absence of the decree and then to push it further, are all the things which cannot even be imagined of. In my view, the whole process right from accepting the execution application to issuing warrant and then execution of the warrant, has been without jurisdiction. Thus, though in fact, the decree holder has been put in possession of the property, the whole act is tainted with illegality."
Thus, the whole process of putting the decree-holder in possession of the property is vitiated. In my opinion, the execution application could not be fled before the Court, not could the Court issue a warrant, not could the Bailiff execute that warrant, nor could any police aid be granted by the Court. Thus, the process being vitiated, there is no justification for the decreeholder remaining and continuing in possession of the property. I would set aside the order passed by the trial Court and direct the Court to put the judgment-debtor (present petitioner) in possession of the property which he lost due to illegal action. We would expect the same zeal in restoring the possession to the judgment-debtor (the present petitioner) as one shown in putting the decree-holder in possession of that property. The revision is allowed. Rule is made absolute. The respondent 2 shall bear the costs of the petitioner in this revision in addition to his own."
12. Mr. Aggarwal further cited The Lakshmi commercial Bank Ltd. Vs. M/s American Rubber Mills Co. :
"In view of my findings on Issue No.1, in my opinion, the objection raised about the judgment-debtors being precluded from raising the present objection does not arise. Ordering of sale is the function of the court and goes to the root of the jurisdiction that the court has. A court cannot execute a decree which is not executable. It is immaterial whether a party objects to execution or not. If the court does not have the power to order sale in execution of any decree no such orders can be passed. Issue No.2, therefore, does not require to be determined at all."
13. Mr. Aggarwal further cited Madhava Mennon Vs. Esthapanose and another AIR 1952 Travancore Cochin 428:
"A suit cannot be deemed to have been finally disposed of on the passing of such a decree except in cases where the prayer in the suit was merely for a declaration of the extent of the share to which the plaintiff is entitled to in the suit properties. Where the suit is for recovery of the specific portion of the properties falling to the share of the plaintiff, the suit can be deemed to have been finally disposed of only on such a specific plot being allotted to the plaintiff after a division of the properties by metes and bounds. All the proceedings leading to the allotment of specific plots towards the shares of the respec tive parties are only proceedings in the suit. Partition of the properties by metes and bounds for the purpose of making final allotments towards the shares of the respective parties may be got done through the revenue authorities or through Commissioners authorised by the Court in that behalf. but the proposals made by them are only tentative and are subject to scrutiny and final approval by the Court.
When such proposals are finalised by the Court with or without odifications, a decree will follow on the basis of the allotments approved by the Court, that alone will be the final decree in the case and only on the basis of such a decree execution proceedings can commence for the recovery of the shares allotted to the several parties. These principles have been consistently approved by the Cochin High Court as is evident from the three Full Bench decision in 'ANANTHARAMA IYER Vs. RAMANATHA IYER'15 Cochin L. R.237, 'KRISHNA MEMON Vs. NARAYANA MEMON' 20 Cochin L. R. 397 and 'RANGA NAICKEN Vs. KESAVA NAICKEN' 37 Cochin L. R. 275. The decrees which had to be construed in the first two of these cases were decrees passed under the old Code and on construing them in the light of the principles explained above, it was found that the decrees were only preliminary decrees................"
14. Another contention raised by Mr. Aggarwal, Learned counsel for the Objector is that there can be more than one preliminary decrees but not more than one final decree in a suit. He has further contended that the suit remains pending even after the passing of the preliminary decree which would demonstrate that further proceedings are required to be taken in terms of preliminary decree. If a final decree would have been passed in the matter, no further proceedings are required to be taken thereafter. In support of his submission, the learned counsel for the Objector has cited Phoolchand and another Vs. Gopal Lal and Vijaya Bank Vs. S. Bhathija and another :-
"Where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary, to base the decision of the Court on the later circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstance as they stand at the time the decree is made."
15. Mr. Aggarwal has contended that as the decree was preliminary decree, no relief could be given to the decree holder and has cited in his support Tara Chand and others Vs. Smt. Shakuntala Devi and others Mr. Aggarwal further contended that though there may be more than one preliminary decrees if circumstances justify the same, but there may not be more than one final decree and has cited Debendra Jena and others Vs. Umakanta Jena and others :-
"It, therefore, appears to be the settled position of law that the final decree proceeding is a stage in continuation of the suit for partition. The partition suit should be deemed to be pending until a final decree is passed. The preliminary decree declares and determines the shares of parties, but all other equities which requires determination and adjustment amongst them are to be decided in the final decree proceeding with the objec-
tive of not driving the parties to institute separate suits. Events which have happened subsequent to the passing of the preliminary decree can also be taken into consideration and decided at the stage of the final decree proceeding. If rights of parties are decided during the final decree proceeding, such decision will amount to another preliminary decree in the suit for partition. Thus, all disputes of the parties are intended to be settled once for all in the final decree proceeding, so that the parties thereto shall not again approach the court by instituting fresh suits in respect of the subject matter of partition."
16. Mr. Aggarwal has contended that executing Court cannot execute the preliminary decree unless the final decree is passed as envisaged under Order 20 Rule 18(2) of CPC. He has contended that after final decree is passed and direction is issued to pay stamp papers for engrossing final decree thereon and the same is duly engrossed on the stamp paper, same become executable or becomes an instrument duly stamped. These acts together constitute final decree and in his support relied upon Shankar Balwant Lokhande Vs. Chandra Kant Lokhande AIR 1975 SC 1211. The argument of the learned counsel for the Objector was that only the final decree is executable and as no final decree has been passed, there is nothing which could be executed. Mr. Aggarwal has further contended that after passing of the preliminary decree and till the passing of the final decree, the suit must be deemed to be pending. The argument of the counsel for the Objector is that because the suit is still pending, therefore, it should be presumed that no final decree has been passed till date. In support of his submission, learned counsel for the Objector/defendant has cited Rama Nathan Chetty Vs. Alagappa Chetty AIR 1930 Madras 528:-
"Though the final decree is only by way of working out in detail the principles laid down in the preliminary decree, the proceedings which take place between the two decrees are in the nature of continuation of the suit for the purpose of carrying out the directions contained in the preliminary decree."/BLOCKQUOTE>
17. He has also cited Ghansh Martha Vs. Brindavan Pradhan and Another :-
"The legal position is well settled that the partition suit must be deemed to be pending till a final decree is actually passed and that any number of preliminary decrees can be passed therein."
18. The next argument of learned counsel for the objector was that in the present case an Award in respect of the immovable property requires compulsory registration and as the same was not registered, a decree in terms of the Award could not have been passed by the Court. Rattan Lal Sharma Vs. Purshottam Harit :-
"It is not necessary to express any opinion on the first argument as we are of opinion that the award requires registration and, not being registered is inadmissible in evidence for the purpose of pronouncing judgment in accordance with it. So we pass on to the remaining two arguments of the appellant."/BLOCKQUOTE>
19. He has further relied upon a Division Bench decision of this Court in Sardar Singh Vs. Smt. Krishna Devi and another 1991 (2) Arb. L. R. 201:
"A conjoint reading of Sections 17(1)(b) and 49 leave no manner of doubt that any award or non-testamentary instrument which purports or operates to create declare, assign, limit or extinguish any right, title or interest in any immovable property of the value of Rs.100 and above is required to be registered, otherwise, the instrument will not be received in evidence of any transaction affecting such property and the same would be hit by the provisions of Section 49 of the Registration Act. It is not disputed that in the instant case the award of the arbitrator declared that the property belonged to both the brothers viz., the appellant as well as respondent No.2. In such situation it cannot be said that the award did not purport to create any right, title or interest in the immovable property. In fact, it was by virtue of the award that a new right was sought to be created in favour of Sardar Singh, appellant. Section 3 of the Arbitration Act provides that an arbitration agreement, unless a different intention, is expressed therein, shall be deemed to include the provisions set out in the first schedule insofar as they are applicable to the reference. Paragraph 7 of the first schedule is as follows:
"The award shall be final and binding on the parties and persons claiming under them respectively".
20. Mr. Aggarwal has contended that as the decree was preliminary decree and the final decree has to follow in accordance with the law laid down, it is the duty of the Court to first settle all the pending disputes between the parties so as to prevent the multiplicity of litigation and in support of his contention has cited Prafulla Kumar Sahoo Vs. Charulata Sahoo and another .
21. Mr. Aggarwal has contended that in a suit for partition if the property is not divisible and sale of property is the only remedy then when a request is made under Section 2 to the Court, the Court will direct sale and another share-holder can apply under Section 3 for leave to buy at a valuation the share of the other party asking for a sale. That can only be done after the valuation has been made by the Court and at that Court has to offer to sale the share of the party asking for sale to the share-holder applying for leave to buy under Section 3 of the Partition Act. In support of his contention, he has cited R. Ramamurthi Aiyar (dead) by LRs. Vs. Raja V. Rajeshwararao .
22. Mr. Aggarwal has contended that no inherent power vests in the Court to sell the property except in the manner as provided under the Partition Act and in support of his contention has cited Faquira Vs. Smt. Raj Rani and another . He has further cited Nitya Gopal Samanta Vs. Pran Krishna Dau and others :
"Nothing can be spelt out from the provisions contained in S. 37(2), Bengal, Agra and Assam Civil Courts Act 1887 to which Mr. Chatterjee referred us. The provision was not intended to get round the express terms of the Partition Act. The provision was intended for entirely different purpose to arm the Court with residuary powers in cases where either the Hindu Law or the Mahomedan Law is otherwise silent. I have already stated that the partition Act has a clear implication about the non-existence of inherent powers in the Court to direct a sale in lieu of partition in cases not covered by the Partition Act. Nor do the provisions of S.396, Civil P. C. 1882 or the provisions contained in O.26, assist the respondents. Section 396 Code of 1882 rather supports the position that under the then state of the law the Court had only power to partition and not to direct a sale. The provisions of O.26, Civil P. C. merely lay down the mode in which the Commissioner will do his duty in making allotments. Nor can ny inference be drawn from the general words of O.20, Rule 18, which empowers the Court while passing a preliminary decree for partition to give further directions. Such directions mean direcions which relate to the working out of the preliminary decree for partition and cannot be invoked as conferring on the Court a substantive power of sale apart from partition."
23. Another argument of learned counsel for the objector-judgment debtor was that the suit has not yet been fully decided and it cannot be said that litigation between the parties has ended finally and even if it is assumed that a final decree is passed and the same is executed but the net result would be that the petitioner is suing for partition. In support of his contention, he has relied upon Ghantesher Ghosh Vs. Madan Mohan Ghosh and others :
"Under these circumstances, it cannot be said that a decreeholder in a partition suit or his transferee who is armed with the plaintiff's rights pending such suit or even after the passing of the final decree as transferee of decretal rights when he seeks execution is not suing for partition or is not entreating the Court for its assistance to get his right fully vindicated as per the claim in the suit and decree therein. In this connection, it is also profitable to keep in view the legislative intent underlying various provisions of the Code of Civil Procedure which shows that in given circumstances the proceedings in the suit can be treated to include even execution proceedings."
24. Another argument which has been advanced by learned counsel for the judgment debtor-objector is that no final decree having been passed in this matter, Court has power to declare the share of the parties. In support of his contention he has cited Hanumantappa Dyamappa Jadar Vs. Mallavva and others .
25. Mr. Aggarwal has contended that as no requisite stamp was paid on the decree, execution proceedings itself is not maintainable. In support of his contention he has cited Ganesh Prasad Vs. Mt. Makhna and another AIR (35) 1948 Allahabad 375. He has further cited Lachhman Dass Vs. Ram Lal and another :
"On a proper construction of the award, it does appear to us that the award did create, declare or assign a right, title and inter est in the immovable property. The award declares that 1/2 share of the ownership of Shri Lachhman Dass shall "be now owned by Shri Ram Lal, the respondent in addition to his 1/2 share owned in these lands". Therefore, the said award declares the right of Ram Lal to the said share of the said property mentioned in that clause. It is not in dispute that the said property is immovable property and it is not merely a declaration of the pre-existing right but creation of new right of the parties. It is significant to bear in mind that the section enjoins registration wherever the award "purports or operates to create, declare, assign, limit or extinguish" whether in present or in future any right, title or interest of the value of Rs.100/- or upwards in immovable property.
Mr. Ashri, however, contended that the award had been subsequenty registered and unless the registration was set aside the award did not suffer from any defect. We have, however, to examine whether the High Court was right in accepting the award and in pronouncing the judgment in terms of the award. At the relevant time, the award was not registered. If that is the position, then the subsequent registration of the award whether in conformity with Sections 23 and 25 of the Act or whether in breach or in violation of the same is not relevant."
26. On the other hand, it has been contended by Mr. L. R. Gupta, learned counsel for the petitioner that Mr. c. K. Daphatri had inspected the premises himself and on consideration of the material placed before him, found and held that the suit property was not capable of being divided into two reasonably livable halfs. He contended that it was on account of the pendency of the suit filed by the IFCI that it was not possible to sell the property and divide the sale proceeds in two equal shares till the IFCI suit was dismissed or restraint order passed therein was vacated or modified. He has contended that from the award it was made clear that but for the injunction order granted in the IFCI's suit, the learned Arbitrator would have effected the partition of the suit property by ordering the sale thereof and dividing the sale proceeds into two equal shares. He contended that it was for this reason that the arbitrator held that the sale of the property would have to be awaited till the restraint order was lifted/vacated/modified.
27. He further contended that an application under Sections 14 and 17 of the Arbitration Act, 1940 was filed by B. K. Khanna-petitioner in the suit which was registered as Suit No. 557 A/80. Objection to the award was filed by plaintiff-B. K. Khanna as well as objection were also filed by Smt. Kamla Rathore and an application under Section 15 of the Arbitration Act was filed by K. N. Khanna, objector in the suit. Objections were dismissed by S. S. Chadha, J. vide his order dated 15.4.1983 and award made by the Arbitrator was made rule of the Court. It was contended by Mr. Gupta that once the award made rule of the Court, a decree in terms thereof was passed and the award was to form part of the decree. He relied upon the passage from the said judgment to the following effect:
"In my opinion the award does not mention the absolute division of the two portions which are being awarded to Mr. K. N. Khanna and Mr. B. K. Khanna. In fact, the award is that it is not possile to effect the partition of the property bearing No.22, Reten don Road, New Delhi. Mr. Gupta has further contended that decree which was drawn up by this Court pursuant to the award made rule of the Court fully comply with the requirement laid down under Order 20 Rule 6 CPC."
28. It was contended by Mr. L. R. Gupta that against the decree passed on 15th April, 1983 by S. S. Chadha. J. Smt. Kamla Rathore another objector in the suit filed an appeal being FAO (OS) No.73/83. The said FAO (OS) was heard and decided by a Division Bench of this court and the appeal was dismissed in limine. Against the said order of the Division Bench, Smt. Kamla Rathore filed a special Leave Petition being SLP No.788/84 which was also dismissed by the Supreme Court on 27.8.1984. Mr. Gupta has contended that the objection taken by objector-K. N. Khanna that the suit No.878/76 and Suit No.557 A/80 were still pending and, therefore, the decree passed by the Court was only a preliminary decree, was wrong and without any substance. He has contended that the decree in terms of the award which was passed by this Court on 15.4.1983 could not be executed on account of the interim injunction granted by the Court in IFCI suit (bearing No.59/73) and as a matter of fact it was only on this account that the decree of partition by sale of property remain pending its execution or implementation.
29. Learned counsel for the petitioner further contended that B. K. Khanna filed an IA No.4682/83 on 10.11.1983 in Suit No.878/76 claiming five reliefs. Yogeshwar Dayal. J. (as his Lordship that was) vide his Lordship's order dated 21.5.1984 construed the decree as partly preliminary and partly final. It considers the decree to be final insofar as that both the brothers had equal shares in the immovable property in dispute. It was again final in the sense that the Arbitrator held that the property could not be divided into two equal halfs. However, it was held that it was preliminary to the extent as nothing could be done for enabling only partition of the property till the suit filed by IFCI against M/s B. K. Khanna & Company and others was decided. Therefore, prayer Nos.4 and 5 in the application (IA No.4682/83) it was held that no further proceedings could be taken as per the award till the suit filed by IFCI decided or the orders passed in the aforesaid suit in the interim application were vacated or modified. Mr.Gupta contended that order gave finality with regard to the ownership of the suit property by two brothers in equal shares and property being incapable of division into two equal halfs. He has further contended that Suit No.557 A/80 was finally decided on 15.4.1983 by S. S. Chadha, J. and the same is not pending and no application could have been pending in the suit. Mr. Gupta has further contended that executing court has only to execute the decree as it stands and as the award does not visualise the same by offering share to the other party.
30. He has further contended that as a matter of fact K. N. Khanna in his reply to IA 110/84 admitted that no suit was pending and executing court cannot go behind the decree and the executing court has to execute the decree as it stands.
31. Mr. Gupta has contended that B. K. Khanna in order to get the restraint order vacated in IFCI's suit moved an application (being IA No.3187/88). The said application was opposed by the objector-K. N. Khanna. However, that application was finally disposed of by D. P. Wadhwa, J. (as his Lordship then was) allowing the application of B. K. Khanna vide order dated 3.9.1991. He contended that as a matter of fact, the Court finally vacated the interim order granted on 6.2.1973 and 26.2.1974 and allowed the sale of suit property subject to the condition that in case the sale of the suit property was effected, the amount equivalent to the claim of IFCI and Union Bank of India in Suit No.59/73 and Suit No.1179/82 respectively shall be got as security in satisfaction of the decree. However, later on as the sale proceeds of the assets of M/s Shama Forging Company which had been deposited in the Court were sufficient to satisfy the claim of IFCI and Union Bank of India in their respective suit, the IFCI's suit was finally disposed of and dismissed on 27.8.1993. Mr. Gupta contended that K. N. Khanna filed an appeal against the said order on 3.9.1991 before Division Bench which was registered as FAO (OS) No.230/91. The said appeal was dismissed on 6.2.1992.
32. Mr. Gupta has contended that it is in this background after vacation of the interim order dated 6.2.1973 which was confirmed on 26.2.1974 that petitioner-B. K. Khanna filed EXecution No.173/91 on 26.2.1991 in Suit No.878/76 for execution of the decree dated 15.4.1983. Repelling the contention of the objector, counsel for the petitioner contended that an application (IA 38/94) in Execution No.173/91 was filed on 28.1.1994 under Section 151 of the Code of Civil Procedure praying to the Court that the Reg1istry be directed to engross the decree dated 15.4.1983. Along with the said application non-judicial stamp papers were also filed by the petitioner and thereafter nothing was to be done from the side of the petitioner in execution petition or in the suit.
33. From the arguments advanced by the learned counsel for the parties, the questions for adjudication are:
(1) Whether the decree dated 15.4.1983 interpreted by the Court on 21.5.1984 was a preliminary decree or a final decree?
(2) Whether the decree has been prepared in terms of Order 20 Rule 6 or Order 20 Rule 18 of the CPC?
(3) Whether procedure prescribed under Order 26 Rule 13 & 14 CPC is gone through and a Local Commissioner is appointed for dividing the property by metes and bounds and can the present execution petition maintainable?
(4) What is the effect of the decree if the same has not been engrossed on a non-judicial stamp paper?
(5) Whether award dated 27.11.1980 in respect of immovable property in the absence of compulsory registration, the decree passed thereupon is a nullity.
34. From the bare look of the order making the award rule of the court, it is manifestly clear that the property could not be reasonably and conveniently divided into two equal portions. When that was the situation, the property has to be sold and sale proceeds divided in two equal shares. What was the hitch before the Arbitrator, the Court making the award rule of the Court, thereafter order dated 21.5.1984, that there was a restraint with regard to the suit property in the suit filed by the IFCI. The moment that stay order was vacated by this Court on 3.9.1991 in IA 31887/89 in the IFCI's suit, the decree became final decree capable of being executed in terms of the decree dated 15.4.1983 passed by this Court. It is well established principle of law that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree. Muthangi Ayyana Vs. Muthangi Jaggarao and others .
35. In this case the interpretation of the decree by order dated 21.5.1984 with regard to the shares of the parties, the impart ability of the property was determined to be final, no appeal was preferred by objector-K. N. Khanna against the order dated 21.5.1984. No further order could be passed on such final determination in view of the orders restraining the sale of the suit property. The moment the restraint order was modified or vacated nothing remained to be done in the proceedings. Therefore, I hold that the execution application filed by the petitioner was maintainable after 3.9.1991 when the injunction orders were vacated by Wadhwa, J. (as his Lordship then was).
36. Therefore, the authority cited by Mr. Aggarwal, learned counsel fr the objector, Ventaka Reddy and others Vs. Pethi Reddy (supra) is of no help. As a matter of fact the Court held:
"It is not clear from the judgment what the contingencies rered to by the High Court are in which a preliminary decree can be modified or amended unless what the learned Judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Ss.151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a Court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be "modified and amended." Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all, that is not the law. A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree- the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to S. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree."
37. Similarly, reliance placed by the objector on Vishwasrao Vs. Ushabai and another (supra) is also misplaced as in Vishwasrao Vs. Ushabai and another (supra) an order issuing warrant of possession was without jurisdiction when no decree justifying the execution was passed. Therefore, the said authority cited by Mr. Aggarwal is of no help to the case of the respondent/objector.
38. Similarly, the case of Madhava Mennon Vs. Esthapanose and another (supra) is also of no help to the objector. In this case the Court held:
"The ruling to that effect was obviously confined to the particular circumstances of that case, and we do not think that the court intended to lay down as a general proposition that even where a decree-holder mistakenly treats the preliminary decree in a case as a final decree, he will be estopped from moving for the passing of a final decree at any subsequent stage. No such estoppel can arise in a matter like that. The nature of the decree is to be determined not with reference to the conduct of the parties to it or on a consideration as to who they construe it. If the decree is really a preliminary decree, it will continue to be so until a final decree capable of being put in execution is passed in spite of the fact that in the meanwhile the decree-holder may have taken a wrong step under the mistaken impression that the first decree itself is the final decree in the case.
So far as the present case is concerned, there is nothing to show that the plaintiff treated the decree dated 4.9.1100 as the final decree in the case. In the applications put in by him subsequent to the passing of that decree he had asked for an allotment of a specific plot to his share after a partition of the properties by metes and bounds and also for recovery of such plot. The prayer for the allotment of a specific plot to his share is in effect a prayer for passing a final decree in the case. No doubt his applications were in the nature of applications for execution.
That circumstance by itself cannot be taken to mean that he treated the decree in the case as a final decree. There is the further fact that as matters stand at present the allotment contemplated by the decree as amended on 30.6.1113, remains yet to be made. Under these circumstances, it cannot be said that the plaintiff is in any way estopped from applying for such an allotment being made by the passing of a final decree in the case. Thus, in any view of the matter, the objections raised by the 5th defendant-appellant to the plaintiff's application dated 15-11- 1119 are clearly unsustainable."
39. Similarly, the authority cited by the learned counsel for the objecor, Debendra Jena and others Vs. Umakanta Jena and others (supra), is of no help to the proposition made before this Court as the basic purpose is to settle once for all all the disputes between the parties. This is how, the Court held:
"......................... Thus, all disputes of the parties are intended to be settled once for all in the final decree proceeding, so that the parties thereto shall not again approach the court by instituting fresh suits in respect of the subject matter of partition."
40. Similarly authority Ghantesher Ghosh Vs. Madan Mohan Ghosh and others cited by learned counsel for the defendant is not applicable to the facts of the present case as in the said judgment, the Supreme Court held that "It is for this very purpose that the legislature has provided as per Section 38 of the civil Procedure Code that a decree may be executed by the Court which passed it or by the Court to which it sent for execution. Therefore, it is the duty of the Court which passes the decree to get it executed when called upon to do so with a view to seeing that the rights and obligations flowing from such decree get finally complied with and translated into reality. Till that stage is reached the Court which passes the decree does not become totally functus. Officio and litigation between parties cannot be said to have ended finally."/BLOCKQUOTE>
41. In the present case, the Arbitrator after inspecting the site held that it was indivisible, not capable of being partitioned by metes and bounds. Therefore, no further proceedings or any inquiry as contemplated by Order 20 Rule 18 was to be made by the Court for partitioning the property by metes and bounds. What can the Local commissioner do in this case? As has been contended before me by Mr. Aggarwal, in view of the fact that the Arbitrator himself has stated in the award that the property was incapable of partition by metes and bounds. As a matter of fact, disputes emanating with regard to the partition of the suit property were referred in Suit No.878/76 for the sole arbitration of Mr. C. K. Daphatry and the Arbitrator himself after personal inspection, taking into consideration the material on record, hearing the parties, Arbitrator gave the award that the property in question was incapable of being divided into two equal halfs. Therefore, there is no force in the argument of Mr. Aggarwal that this Court has to go through the procedure as laid down in Rules 13 & 14 of Order 26 to make the partition of the suit property by metes and bounds and suggest the severance of different portions of property.
42. Another argument raised by Mr. Aggarwal was that the property could be sold in the manner as provided under the Partition Act and various authorities were cited by the learned counsel for the objector. While disposing of an application filed by the objector (IA No.1392/92) on 6.4.1999 this Court ordered:
"...................... However, in the present case as I men tioned above whether the exercise of the right irrespective of the fact that whether any previous application has been dismissed as withdrawn or otherwise defendant has to satisfy this Court that the application is made bonafide. During the course of hearing of this application, I had pointedly made a query from the learned counsel for the defendant/applicant as to what would be the reasonable value of the property in question. On instructions from the defendant who is present in Court, Mr. Aggarwal has stated that to his information half undivided share of the property in dispute was sold two years back for five crores of rupees. Even if that value is taken to be the reasonable value without ascertaining the market value of the property in ques-
tion, the total value of the property in dispute would come to Rs.10 crores.
I had directed Mr. Aggarwal whether he is willing to deposit a sum of Rs.5 crores in the Court within a period of one week to test the bonafide of the applicant. Mr. Aggarwal on instruction has stated that he is not in a position to deposit the said amount. However he could arrange if more time is given for the bank guarantee. In my opinion this stand of the applicant/defend ant is bereft of bona fide intention. An applicant who comes to the court to invoke in its aid Section 3 of the Partition Act, with an application filed way back in 1992 cannot say that he is unable to deposit half value of the share of which he would like to buy the property. Therefore, I would not like to go into the further aspect of the controversy in this application. The appli cation is totally bereft of bonafides. The same is dismissed."
43. Let me deal with the argument of learned counsel with regard to the effect of a decree not engrossed on non-judicial stamp papers. Punjab & Haryana High Court in Kartar Singh and others Vs. Bachan Singh and others had the occasion to deal with this proposition:
"Held (i) that B had become the exclusive owner of the premises on 30.7.1965 when the partition suit was decreed. The unstamped partition decree was validated from the date it was made on supplying the stamp paper. Hence, by the execution of the Ka buliyat on 15.4.1967 by R he could not vest any tenancy rights in the vendees. Therefore, B who had become the full owner of the property could file an ejectment application. AIR 1948 All 375 and AIR 1945 Pat.482 and AIR 1942 Lah 260(FB), Discussed and Distinguished."
44. In Kartar Singh and others Vs. Bachan Singh and others (supra) Court followed Gopi Mal Vs. Vidya Wanti etc. AIR (29) Lah 260. In this case the Court held as follows:
"The correct way of looking at the matter is that the question here was whether there was a decree that could be acted upon and the appellate Court was at liberty to consider the decision of the executing Court on the question. It must be pointed out that S. 35 is in terms wider than S. 36, for while S. 35 refers both to admission in evidence and to acting upon and to registration and to authentication, S. 36 only refers to admission into evidence. There must be obviously some distinction in admitting into evidence and acting upon. I do not think it can be doubted, and indeed it was conceded at the bar, that when an executing Court s asked to execute a decree, it is asked to act upon the decree. I do not think that the whole of execution of a decree can be considered to be a mere matter of procedure. In 7 Rang.624 their Lordships, while pointing out that admission into evidence and authentication were questions of procedure, did not say that acting upon was a question of procedure also. I, therefore, consider that the position really is this: There was no lack of inherent jurisdiction in the executing Court to act upon the decree, but there was an illegality or error affecting its juris diction in proceeding to act upon a decree which the statutory bar provided by S. 35, Stamp Act, forbade it from doing. It is true, or might be true that once the proper stamp was supplied, the validity of the decree would date back to the date of the decree and therefore the execution application instead of being struck off might proceed as from that date."/BLOCKQUOTE>
45. In Shankar Balwant Lokhande (dead) by L.Rs. Vs. Chandrakant Shankar Lokhande and another question arose as to when the limitaion begins for filing of an application to engross final decree on a stamp paper. The Supreme Court held that the final decree merely carries the fulfillment of the preliminary decree. Therefore, a preliminary decree for partition is only a declaration of the rights of the parties and the shares they have in the joint family or co-parcenary property which is the subject matter of the suit. The final decree should specify the division by metes and bounds and it needs to be engrossed on stamp paper. Therefore, the requirement is to pass a final decree and then to engross the same on stamp papers. Learned counsel for the petitioner has contended that stamp paper has already been filed. It is for the Court to pass final decree and direct the Registry to engross the same on the stamp paper and proceed with the execution in accordance with law. Mr. Gupta, learned counsel for the petitioner has contended that Shankar Balwant Lokhande (dead) by L. Rs. Vs. Chandrakant Shankar Lokhande and another (supra) was a case in respect of a suit where a final decree was passed, property was partitioned by metes and bounds and separate possession of the share of the property respectively was given and it was not a case of the property in which the Court found that it was not reasonably and conveniently divisible by metes and bounds and separate possession could not be given and same was liable to be sold for effecting partition of the property by distributing the sale proceeds. It has been contended by Mr. Gupta that in the present case requisite stamp papers were filed by the petitioner/decree holder on 28.1.1994. No proceedings for execution of the decree by sale of the suit property have taken place till date. Only objections have been filed by the objector and the same have been heard and not decided. He has contended that therefore, execution application made on 26.9.1991 is competent and valid as no steps to execute the decree by ordering the sale of the suit property has been taken so far, even if it is assumed that no stamp paper has been supplied on 28.1.1994. I do not see any force in the argument of the Objector that as the decree was not engrossed on non-judicial stamp paper and therefore, the same was not executable. An application bearing IA No.38/1994 was filed on 28.1.1994 under Section 151 of the Code of Civil Procedure by the petitioner praying, inter alia, that the Registry be directed to engross the decree dated 15.4.1983. Along with the said application non-judicial stamp papers were also filed by the petitioner. Nothing more was required to be done by the petitioner so as to have the decree engrossed upon the non-judicial stamp paper. If something was to be done, same was to be done in the Registry.
46. That leaves me to the last question to decide as to whether dated 27.11.1980 in respect of immovable property in the absence of compulsory registration, the decree passed thereon is a nullity. It is an admitted case of the parties that an application under Section 21 of the Arbitration Act was filed during the pendency of the suit (No.878/76) for partition and Court referred all disputes of the parties to the sole arbitration of Mr. C. K. Daphatry, Senior Advocate. In Hari Shankar Bhargava Vs. Smt. Mohan Devi & Others ILR (1975) I Delhi 82, this Court held as under:
"In a way awards fall under two categories_ awards made with the intervention of the court and awards made without the interven tion of the court. Chapters III and IV both deal with arbitration without intervention of the court. This means that the agreement of reference is made and the arbitration itself takes place ithout the intervention of the court and the assistance of the court is only sought to give effect to the award.
The outstanding fact which emerges from this discussion is that an arbitration award made under Section 20 is made with the intervention of a Court. Section 20 gives an option to a party to apply under that section instead of chapter II. The award is in other words, the result of judicial proceedings taken by a party under Section 20. The arbitrator derives his power and authority from the order of the court made under Section 20. H receives a mandate from the court empowering him to settle the dispute between the parties. Such a proceeding is a judicial proceeding and continues until such time as an award made in consequence thereof results in a decree or the reference is superseded or the award made thereon is set aside. The important fact to notice is that under Section 20(2) the application of a party has to be registered as a suit and the party claiming to be interested is styled as a plaintiff and the remainder of the parties are styled as defendant or defendants. Now if the award has been made in judicial proceedings then it is well settled that it does not require registration. The Privy Council has repeatedly laid down that a document which forms part of the judicial proceedings does not require registration: See Bindesri Naik Vs. Gangasaran Sahu and others (1897) 25 IA 9 (4) and Pranal Anni Vs. Lakshhmi Anni and others, (1899) 26 IA 101, (5)."
47. Therefore, if the award is made in the judicial proceedings then it is well settled that it does not require registration. This Court in Sanjay Kaushish Vs. D.C. Kaushish and others :
"It is evident that the award is scribed on the stamp paper and all legal steps have been taken before the decree was obtained. As the award had been given by an arbitrator who was appointed by the Court in a suit, the award was not required to be registered compulsorily. (See Suit No.316-A/72, Hari Shankar Bhargava Vs. Smt. Mohan Devi decided on August 8, 1974 by Avadh Bihari, J. )."
48. That being the situation after making of the award by Shri C. K. Daphtary, the award has been made as rule of the Court on 15.4.1983. A decree in terms thereof was passed, an appeal taken against that award by Smt. Kamla Rathor, another objector in the suit, bearing FAO (OS) No.73/1983 was heard and dismissed by the Division Bench of this Court. Even an S. L. P. No.778/1984 was filed against the dismissal of the said order of the Division Bench which was dismissed by Supreme Court on 27.8.1984. What remained to be done in terms of the award made as rule of the Court and decree in terms thereof passed on 15.4.1983, only impediment was restraint order passed in IFCI Suit, that restraint was lifted vide the order passed in IA No.3187/1988. On 3.9.1991 IFCI suit was finally dismissed on 27.8.1993. Shri K N Khanna filed an appeal against the order dated 3.9.1991 passed in IA No.3187/1988 decided by D P Wadhwa, J. (as His Lordship then was) before the Division Bench which was registered as FAO (OS) 230/1991 and the said appeal was dismissed on 2.2.1992. When the restriction imposed by the Court making the award rule of the Court disappeared on 3.9.1991 there was no further impediment in the way of B K Khanna to file the Execution petition No.173/1991 for execution of the decree dated 15.4.1983.
49. It is important to point out that B K Khanna had filed an IA No.4682/1983 on 10.11.1983 in Suit No.878/1976 after making of the award rule of the Court and passing of a decree in terms thereof on 15.4.1983. In the said IA No.4682/1983, which was disposed of by Yogeshwar Dayal, J. (as His Lordship then was) vide the order dated 21.5.1984, it held that (i) decree to be final insofar as both the brothers had equal shares in the immovable property in dispute; and (ii) decree was again final in the sense that the Arbitrator held that the property could not be divided into two equal halves. Once the injunction passed in the suit filed by IFCI was lifted by D P Wadhwa, J. (as His Lordship then was) on the application filed by B K Khanna vide the order dated 3.9.1991, there was no further impediment for the decree to be executed. Thus, both the brothers having equal shares in the immovable property, the property incapable of being divided into two equal halves, I order that the property be put to sale so that maximum amount could be realised which ill be in the interest of both the brothers as they would be the recipients of one-half share each of such receipts. I do not find any merit in the arguments of the Objector that the decree was preliminary decree and execution was pre-mature. As a matter of fact, S S Chadha, J. (as His Lordship then was) vide his order dated 15.4.1983 said:-
"In my opinion the award does not mention the absolute division of the two portions which are being awarded to Mr. K. N. Khanna and Mr. B. K. Khanna. In fact, the award is that it is not possi ble to effect the partition of the property bearing No.22, Retendon Road, New Delhi. Mr. Gupta has further contended that decree which was drawn up by this Court pursuant to the award made rule of the Court fully comply with the requirement laid down under Order 20 Rule 6 CPC."
50. Even the Objector was conscious of this fact that no proceedings were pending as Executing Court cannot go behind the decree and the Executing Court has to execute the decree as it stands. K N Khanna in his reply to IA No.110/1984 has admitted that no suit was pending and Executing court could not go behind the decree and has to execute the decree as it stands. I, therefore, dispose of all the applications by this order and hold that the execution application is maintainable. I direct that the property in question be put to sale by advertisement in the daily Newspapers i.e. 'The Times of India', 'The Hindustan Times', 'Pioneer', as well as in 'Navbharat Times' and 'Punjab Kesari'. For the purpose of selling the property so that it can fetch maximum price, I appoint Ms. Meenakshi Singh, Advocate as Court commissioner to effect the sale of the property by giving publicity in the newspapers stated above. I also fix the reserve price of the property at Rs.10 crores as during the course of disposal of IA No.1392/92 decid-ed on 6.4.1999 it was the objector who stated that half undivided share of the property in dispute was sold two years back for five crores of rupees.
51. The parties will appear before the Court Commissioner within two weeks. For that purpose the Court Commissioner will fix up a date intimating both the parties. The fee of the Court Commissioner will be Rs.25,000/- at the first instance to be paid by the petitioner subject to further order by this Court in this regard. The fee will be exclusive of all the expenses which are to be incurred by the Court Commissioner in getting the sale notice published in the newspapers etc.
52. The Court Commissioner is directed to advertise in the newspapers mentioned above the property in question fixing the reserve price at Rs.10 crores. Both the parties before me will also be entitled to send their respective bids for the purchase of the property. All the offers so received by the Court Commissioner shall be brought to the Court on the next date of hearing for further orders in this regard. The expenditure for publication of the advertisements will be borne by the petitioner subject to further order of this Court in this regard.
53. List this matter on 28th September, 1999 for further proceedings.