Record discloses that these petitioners (defendants No. 1 & 2) are on one side and other siblings were on the other side. Mode of partition could not be effected and that is why the preliminary decree has not been followed up with a final decree. The contention of the petitioners that in view of the judgment of Prakash (supra), the preliminary decree should be set aside as this judgment is effective from 09.09.2005 was considered by the Trial Judge and repelled on the ground that this judgment would have its effect if on that date (09.09.2005), both the daughter and the father were alive. The father of the parties had admittedly expired much prior to 09.09.2005. Even otherwise, an application under Section 151 of the CPC seeking setting aside of the preliminary decree dated 26.11.2010 passed in the presence of the parties who were all along contesting the proceedings is an application hopelessly un-maintainable; it was malafide. The petition before this Court is also nothing short of a malafide exercise.
