Dismissed

Rajinder Paul Puri v. Anand Dev Puri & Ors.

Punjab & Haryana HC18 Jul 2013CR/4252/2013

Case brief

AI extract

What is this about?

The court rejected objections to a final partition decree at the execution stage. It held that an executing court cannot revisit allotment or extent of property once the decree is final. While death of a decree-holder requires legal heirs to claim shares, the original allotment stands. The revision was dismissed.

What did the court decide?

The revision against the order rejecting objections to the final partition decree was dismissed and the order was maintained.

Rajinder Paul Puri Vs Anand Dev Puri & Ors. — Partition | Punjab & Haryana HC (2013)

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Rajan Kumar 2013.07.23 13:51 I am the author of this[1] document Chandigarh

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CR No.4252 of 2013

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.4252 of 2013 Date of Decision: 18.07.2013

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Rajinder Paul Puri son of Isher Mal, resident of Chappar Gate, Ahmedgarh, Tehsil Malerkotla, District Sangrur.

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... Petitioner

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Versus

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Anand Dev Puri son of Isher Mal, resident of Mandi Ahmedgarh, Tehsil M^al rekotla, District Sangrur and others.

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... Respondents

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CORAM: HON'BLE MR. JUSTICE K. KANNAN

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Present:Mr. K.B. Raheja, Advocate, for the petitioner.

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1.Whether reporters of local papers may be allowed to see the judgment? NO

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2.To be referred to the reporters or not? NO

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3.Whether the judgment should be reported in the digest? NO

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K. KANNAN, J. (Oral)

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The revision is against the order rejecting an objection taken by one of the judgment-debtors for delivery of possession of the property sought in terms of a final decree for partition that was passed on 18.09.2002. The final decree is the result of a final adjudication of rights of parties by the Supreme Court where the Court allowed for all the sons and daughters equal share, namely, 1/7^th share. The objector in execution was one of the sons, who had sold 1/3^rd share and who was substituted during the pendency of the suit by this purchaser. Since the share was reduced to 1/7^th and the purchaser did not want to

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[2]

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CR No.4252 of 2013

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suffer the reduction and opted to sell back property to one of the sons and the petitioner is the person, who re-purchased the property and brought himself on record.

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During all these proceedings, he has allowed for the final decree for partition to become final. It appears that the purchaser had actually challenged the mode of allotment in the second appeal before this Court but he had the second appeal dismissed as withdrawn. If the decree relating to the manner of allotment has become final and the decree-holder seeks for possession of the property in the manner in which the final decree has been passed, the Executing Court is bound to act on the same. The Executing Court has no power to traverse beyond the final decree granted.

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The revision petitioner has objection to the manner of allotment in several ways: (i) the property allotted to him is a property in the hands of a tenant and he will be greatly prejudiced by such allotment. (ii) the extent of property, which is granted to him, is also less than for what he is entitled and the decree-holders have been granted 48 sq. ft. when the property actually remaining there is only 47 sq. ft. (iii) one of the sharers, namely, Gianwati has died during the pendency of the proceedings and Court has observed that her share will be given to other decree-holders.

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Either as regards the manner of allotment or the extent

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CR No.4252 of 2013

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[3]

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of property, which has been given under the final decree, the Court cannot receive an objection from a judgment-debtor and make a fresh adjudication thereon. If he had lost the property during the pendency of the proceedings and allowed himself to be substituted by a purchaser and he takes the property back by means of re-purchase, he can only continue with the proceedings from where it was left and if it had come to the final stage of delivery of property after allotments, the sharer who has re-purchased, cannot obtain any new opportunities for hearing his objections. Such a course shall be impermissible at the execution stage.

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The only objection which would still require to be seen is whether the death of one of the decree-holders, namely, Gianwati, her right would survive to the others. The Court has observed that it will survive to the others, which is not correct. I would have normally allowed this objection to be considered and served notice to the respondent but after a deep consideration, I am of the view that even this consideration cannot alter the course of things for the petitioner and to make a ground for execution. In a claim for partition till the property is delivered, the Court has power to pass any number of final decrees. Death of a party during the pendency before the Court does not make the Court functus officio and if the share have to be re-adjusted for death of one of the sharers, the Court will

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CR No.4252 of 2013

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[4]

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always have a power to do so and make a fresh allotment as regards the share, which was specifically allotted to Gianwati. In this case, on Gianwati's death, the heirs as prescribed under Section 15 of the Hindu Succession Act will take her right. If the despondence or husband, brother and sisters, such application could be filed by any person including even the petitioner if he claims himself the heir to her sister. At least, it is not the contention before me. The brother is a heir to the sister and the deceased sisters does not have any lenient despondence. If only the petitioner's own right will get alter to his benefit it shall become possible for him to make an objection. If he has the heir at law, even a gratuitous observation that other sisters will obtain a share in the property cannot come to his part. I cannot allow the prayer made at the instance of the judgment-debtor. The order is maintained although additional reasons are given in this case and dismiss the revision.

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18^th July, 2013 Rajan

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( K. KANNAN ) JUDGE

Rajinder Paul Puri v. Anand Dev Puri & Ors.

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Rajinder Paul Puri v. Anand Dev Puri & Ors.

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