Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 3083 of 2019 Petitioner :- Km. Shreya Vidyarthi Respondent :- Additional District Judge Court No. 4 District Kanpur Nagar And Another Counsel for Petitioner :- Vipin Kumar Counsel for Respondent :- Santosh Kumar Kesarwani
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against two orders both dated 11.4.2019, one rejecting the application 3-Ga and other, the objection 19-Ga, filed by the petitioner. Learned counsel for the petitioner Sri Vipin Kumar has confined his challenge only to one of the above orders whereby the application 3-Ga had been rejected. The orders have been passed in course of executing final decree dated 6.8.2016 in a partition suit between the parties.
Before adverting to the submissions made by learned counsel for the petitioner, it is opposite to note the background facts in brief.
Original Suit No.630 of 1978 was instituted by Ashok Vidyarthi (respondent No.2-herein the referred to 'as plaintiff') claiming permanent injunction and in the alternative a decree for partition and separate possession of his share by metes and bounds. The suit property is Bungalow No.7/89, Tilak Nagar, Kanpur. The trial court dismissed the suit by judgement dated 19.8.1987. The plaintiff carried the matter in appeal No.693 of 1987 which was allowed by this Court by judgment at 12.8.2009 and it was declared that the plaintiff alongwith his two sons Ashish and Manish have 3/4 share in the suit property whereas the petitioner was held entitled to 1/4 share. The judgement of this Court was subjected to challenge before the Supreme Court but which also came to be dismissed by judgement dated 16 December 2015. The review and curative petitions filed by the petitioner were also dismissed.
During this period, the application of the plaintiff-decree holder for preparation of final decree registered as Misc. Case No.23/74/09, remained pending in view of an order of status quo passed by the Supreme Court in petitions filed by the petitioner against the preliminary decree passed by this Court. After the matter pending before the Supreme Court got finalised, the proceedings for preparation of final decree were resumed. On 8.7.2016, the court below confirmed the scheme of partition prepared by the Court Amin. Thereunder the constructed part of the suit property was allotted to the plaintiff and his two sons whereas open land was given to the petitioner. Since the value of the property allotted to the plaintiff-decree holder and his sons was more than their 2/3rd share, therefore, the petitioner was compensated in terms of money. She became entitled to receive Rs.2,48,110/- from the plaintiff apart from vacant land allotted to her. It was followed by passing of final decree on 6.8.2016. The petitioner feeling aggrieved by final decree, filed First Appeal No.411 of 2017 before this Court. However, the appeal was dismissed by this Court by judgement dated 5.3.2018. The said judgement has attained finality.
It is noteworthy that a specific objection was taken by the petitioner before this Court in First Appeal relating to the manner in which partition scheme was finalised by the Court Amin. It was also argued before this Court that objection under Section 47 CPC filed by the petitioner before the Executing Court had not been examined in proper manner. The submissions were repelled by this Court, observing thus:-
“There is no objection to the partition scheme framed pursuant to the preliminary decree. The court below therefore was justified in endorsing the scheme of partition after observing that no objection to it had been filed. There is no illegality in the judgement dated 8.7.2016 directing the office to prepare scheme of partition and to draw the final decree. The consequential final decree has not been shown to be illegal for any other ground.”
After the dismissal of First Appeal, the executing court issued writ of possession so as to implement the scheme of partition finalised by it. At this stage, the petitioner filed the application 3-Ga seeking recall of order dated 8.7.2016 whereby the court below had finalised the scheme of partition submitted by the Court Amin as well as the final decree itself. It was alleged in the application that the Amin report was exparte, incorrect and against the actual site position. It was also alleged that the final decree does not mention as to how much land will go to the share of each party, therefore fresh measurement be carried out by a civil engineer.
The executing court, by impugned order dated 11.4.2019 had rejected the said objection noticing that final decree had attained finality and the objection now sought to be raised, are wholly frivolous.
Learned counsel for the petitioner submitted that the report of the Amin Commissioner relating to scheme of partition is factually incorrect. According to him, the final decree does not indicate as to how much land had fallen to the share of the petitioner.
On the other hand, learned counsel for the plaintiff-decree holder submitted that the objection now sought to be raised are wholly frivolous, and only a devise to delay delivery of possession.
Concededly, the final decree dated 6.8.2016 for recall of which application 3-Ga was filed, was challenged before this Court in First Appeal No.411 of 2017 but which was dismissed by judgement dated 5.3.2018. Thus, the final decree dated 6.8.2016 had merged in the judgement of this Court passed in First Appeal. Moreover, while dismissing the appeal, as noted above, this Court had also specifically adverted to the objections raised against the partition scheme. It was held that since the petitioner had failed to raise objection at the time of finalisation of the partition scheme before the court below, therefore, it was no more open to him to raise such plea in appeal. The judgement of this Court dated 5.3.2018 has attained finality. Apart from it, it is pertinent to note that under the scheme of partition, a map was prepared clearly specifying the portion allotted to the plaintiff-decree holder as well as the petitioner. The scheme of partition not only indicates the quora allotted to the petitioner but the petitioner was also held entitled to Rs.2,48,110/- from the plaintiff- decree holder, so as to equalise the value to share of each party. Thus, even on merits, the contentions that the partition scheme or the final decree does not indicate the portion allocated to the petitioner or the area allotted to her is less, are factually incorrect and not sustainable in law. The court below has rightly found the objections to be frivolous and an effort to thwart the execution proceedings. The suit was instituted in the year 1978 and the decree passed therein could not be executed so far.
The petition is accordingly dismissed with a cost of Rs.25000/- to be paid to the plaintiff-decree holder. The executing court is directed to forthwith proceed to execute the decree.
Order Date :- 30.7.2019 skv (Manoj Kumar Gupta, J.)