Delhi High Court
Shobha Dhawan vs Ramesh Chandra Kapoor & Ors on 23 February, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd February, 2016.
+ RFA 626/2015 & CM No.20631/2015 (for stay)
SHOBHA DHAWAN ..... Appellant
Through: Mr. Yatinder Nath, Mr. Deepak Saini
and Ms. Jyoti, Advs. with appellant in
person.
Versus
RAMESH CHANDRA KAPOOR & ORS ..... Respondents
Through: Mr. Sunil Malhotra and Mr. Amit
Sanduja, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The appeal impugns the judgment and decree dated 21 st October, 2014
of the Court of Additional District Judge (ADJ)-09 (Central), Tis Hazari
Courts, Delhi in CS No.148/2009 titled Ramesh Chandra Kapoor Vs. Vijay
Kumar Kapoor.
2. Notice of the appeal was issued and the parties directed to maintain
status quo.
3. Though the respondent No.5 remains unserved but the counsel for all
the five respondents appears.
RFA No.626/2015 Page 1 of 7
4. Finding that the impugned judgment and decree is the final decree in a
suit for partition of property and is in terms of the statements made by the
parties before the learned ADJ, it has been enquired from the counsel for the
appellant, how an appeal can be maintained against a consent / compromise
decree and whether the appellant had preferred an appeal against the
preliminary decree for partition, inasmuch as Section 97 of the Civil
Procedure Code, 1908 (CPC) bars a party aggrieved from a preliminary
decree from questioning its validity in an appeal against the final decree.
5. The counsel for the appellant has though not made any contention
with respect to the maintainability of the appeal against a consent decree but
contends that the appellant indeed preferred an appeal against the
preliminary decree being RFA No.433/2014 titled Smt. Shobha Dhawan Vs.
Shri Ramesh Chandra Kapoor & Ors but the said appeal was disposed of
vide order dated 17th August, 2015. It is further stated that the respondents,
who are the brothers of the appellant who is their sole sister, took the consent
of the appellant forcibly and in a hasty manner and the appellant is thus
entitled to setting aside of the preliminary decree also.
6. The counsel for the respondents states that even the order dated 17 th
August, 2015 disposing RFA No.433/2014 is a consent order.
RFA No.626/2015 Page 2 of 7
7. A perusal of the order dated 17th August, 2015 disposing of RFA
No.433/2014 preferred by the appellant and against the preliminary decree
and in which the appellant was represented by the same Advocate by whom
she is represented today shows that:
(i) it was the counsel for the appellant who on that date placed
before the Court the proceedings of the Trial Court wherein the
appellant had stated that she accepts the report of the Local
Commissioner and the site plan appended to the report;
(ii) that the appellant in the statement before the Trial Court stated
that the suit property be divided amongst all the parties in accordance
with the site plan;
(iii) though the appellant in her statement before the Trial Court had
stated that her said statement was without prejudice to the outcome of
the appeal preferred against the preliminary decree but the appellant
nevertheless went ahead and vacated the portions of the property in
her possession and which as per the report of the Local Commissioner
had fallen to the share of the others;
(iv) this Court noticed that the partition by metes and bounds had
already taken place.
RFA No.626/2015 Page 3 of 7
It was in this state of affairs that this Court disposed of the
appeal against the preliminary decree.
8. A perusal of the impugned judgment and final decree of partition
shows:
(a) that though the appellant who was the defendant No.5 before
the Trial Court had filed an application under Order VII Rule 11 of the
CPC, again through the same Advocate as appearing for her today, but
withdrew the same;
(b) that statements of the parties were recorded and the final decree
passed in terms thereof;
(c) that the same Advocate who appears for the appellant today
identified the appellant before the Trial Court also.
9. The counsel for the appellant argued that the impugned judgment and
decree were obtained fraudulently and that the bar of Section 97 of the CPC
applies only where no appeal had been preferred against the preliminary
decree; here the appellant had preferred an appeal.
10. Section 97 of the CPC is as under:
"97. Appeal from final decree where no appeal from
preliminary decree--Where any party aggrieved by a
RFA No.626/2015 Page 4 of 7
preliminary decree passed after the commencement of this Code
does not appeal from such decree, he shall be precluded from
disputing its correctness in any appeal which may be preferred
from the final decree."
11. The purport of the aforesaid provision is to bar a challenge to the
preliminary decree for partition in the appeal against the final decree. A
party to a suit for partition who though prefers an appeal against the
preliminary decree but whose appeal has been dismissed, cannot be in a
better position than a party to the partition suit who has not preferred an
appeal against the preliminary decree. The appellant having allowed the
order dismissing his appeal against the preliminary decree to attain finality,
cannot now in this appeal against the final decree, challenge the preliminary
decree for partition.
12. Supreme Court as far back as in Sital Parshad Vs. Kishorilal AIR
1967 SC 1236 held where the preliminary decree has been confirmed in toto
and the appeal therefrom has been dismissed and the final decree is in terms
of the preliminary decree, no challenge to the final decree can be entertained.
In Venkatrao Anantdeo Joshi Vs. Sau. Malatibai (2003) 1 SCC 722 it was
held that non-challenge to a preliminary decree precludes a party from
disputing its correctness in any appeal which may be preferred from the final
RFA No.626/2015 Page 5 of 7
decree. In Manjit Singh Vs. Punjab & Sind Bank 1994 (31) DRJ 299 (DB)
an ex-parte preliminary decree for partition was passed, application under
Order 9 Rule 13 of the CPC for setting aside thereof was dismissed and the
order of dismissal was upheld in appeal. It was held that the preliminary
decree became final and the final decree passed on the basis of preliminary
decree was not liable to challenge in appeal, as the decree had attained
finality. Reference in this regard may also be made to Patel Ranhhodbhai
Bhaichanddas Vs. Rabari Jiva Java AIR 1998 Guj. 207 and Tapan Kumar
Bhattacharjee Vs. Ratan Kr. Bhattacharjee AIR 2004 Gau. 27.
13. Reference may also be made to Section 96(3) of the CPC providing
that no appeal shall lie from a decree passed by the Court with the consent of
the parties. Though in view of the said clear provision, there is no need to
refer to any judgment but reference, if any required, can be made to Katikara
Chintamani Dora Vs. Guntreddi Annamanaidu (1974) 1 SCC 567, Pushpa
Devi Bhagat Vs. Rajinder Singh (2006) 5 SCC 566 and to Inder Kumar
Kathuria Vs. Krishan Kumar Kathuria MANU/DE/4880/2013 (DB).
14. Thus, this appeal against the final decree to the extent impugning the
preliminary decree is barred by Section 97 CPC and is otherwise also not
maintainable, the final decree being compromise decree.
RFA No.626/2015 Page 6 of 7
Dismissed.
No costs.
Decree sheet be drawn.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 23, 2016 bs RFA No.626/2015 Page 7 of 7