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3. On 6-12-1976 suit No. 878/76 was filed by B.K. Khanna seeking partition of the property. Kamla Rathour was also pleaded as one of the defendants to the suit. The suit was opposed by K.N. Khanna on various grounds. One of the grounds on which suit was resisted was that the property was neither capable of division by metes and bounds, nor the property was partible. He also pleaded that the only way to partition the suit property was to put the same to sale by auction and to divide the sale proceeds in equal shares between him and his brother K.N. Khanna. During pendency of the partition suit, B.K. Khanna and K.N. Khanna agreed to refer their disputes for settlement to the sole arbitration of Mr. C.K. Daphtary, Senior Advocate, Supreme Court and formerly the Solicitor General of India. Accordingly, an application under Section 21 of Arbitration Act, 1940 (1A 2020/78) was filed on 17-5-1978. By an order passed on 23-5-1978, subject matter of suit No. 878/76 namely, the dispute about partition of property No. 22, Ratendon Road, New Delhi and other matters and proceedings pending between the parties were referred to the sole arbitration of Mr. C.K. Daphtary.

9. B.K. Khanna and Kamla Rathour filed objections to the award whereas K.N. Khanna filed an application under Section 15 of Arbitration Act, 1940 praying modification to be made to the award. Objections filed by B.K. Khanna and Kamla Rathour and the application filed by K.N.Khanna were dismissed by order dated 15-4-1983. Award of Mr. C.K. Daphtary was made Rule of Court. A decree in terms of the award was passed. Award was to form part of the decree.

10. While deciding issue No. 1 framed on the objection to the award, learned Single Judge specifically held that division of the suit property into two portions was not possible and the only course open was to partition the property and to sell it and divide the sale proceeds in two equal portions between K.N.Khanna and B.K. Khanna. Decree in terms of the award was prepared. An appeal was preferred against the order dated 15-4-1983 before Division Bench, which was dismissed on 6-1-1984. Mrs. Kamla Rathour filed SLP (Civil) bearing No. 788/84, which was dismissed on 27-8-1984 by Supreme Court. Thus the award made by C.K. Daphtary as regards the property in question and the manner in which it was to be dealt with including the decree passed by the Court became final.

11. During pendency of the proceedings for making award Rule of Court, Mrs. Shama Khanna, mother of K.N. Khanna and B.K. Khanna expired on 31-8-1982. On 6-5-1983 B.K. Khanna filed another suit seeking division of that portion of the property, which was in occupation of the mother. In the said suit bearing No. 668/83, a preliminary decree was passed on 2-8-1983, pursuant to which a Local Commissioner was appointed to allocate the property in occupation of the mother in two portions and hand over possession of the same to K.N. Khanna and B.K. Khanna, which according to the award of C.K. Daphtary was only temporary arrangement subject of course to sale of property and division of its proceeds in equal shares between K.N. Khanna and B.K. Khanna.

17. On 21-5-1992 K.N. Khanna filed objections to the decree. The objections are:-(a) Only a preliminary decree has been passed; no final decree for partition has been passed so far. As such execution petition is premature and the decree is not capable of execution being only a preliminary decree; (b) Procedure under Order 26 Rules 13 and 14 and Order 20 Rule 18 C.P.C. has not been followed so far. A Local Commissioner has not been appointed to partition the suit property by metes and bounds. As no final decree for partition has been passed, the execution petition is premature and non maintainable; (c) Execution can be sought only of a final decree for partition and not of a preliminary decree. Suit No. 878/76 is still pending in which no final decree has been passed and as such, execution is not maintainable; (d) no formal decree required under Order 20 Rule 6 has been drawn up, therefore, execution petition is not maintainable; (e) decree has not been engrossed no non-judicial stamp papers. It cannot be put to execution unless the decree is engrossed on requisite non- judicial stamp papers; (f) award made by C.K. Daphtari on 27-11-1980 required registration. As the award is unregistered, the decree passed thereon is a nullity and no execution of a decree which is nullity is maintainable.