Devi Shankar Shukla v. Mukesh Kesharwani and others) was allowed by the judgment and order da

co-sharer) be first allowed to purchase the share of the plaintiffs within a reasonable period of four months thereafter and in case if he fails to do so, the parties shall be free to move the Court for getting their shares separated as per law provided there is no other legal impediment in doing so. Thus the substantial questions of law as framed at Serial No. (i) stands answered.

8. He next submitted that the learned court of first instance ( Additional JCC Court No. 19) acting in compliance of the order passed by this court in the second appeal, passed an order on application A-500 on a valuer report on 07.05.2024, whereby the valuer's report was accepted. In it, the valuer had quantified the value of the property proposed to be purchased by the present respondents as Rs. 9,18,000/- and on objection of the plaintiff- Mukesh Kesharwani and another in Original Suit number 436 of 2009, (New No. 1773 of 2023), this valuation was done in terms of the value of 3 A227 No. 6609 of 2025 the property as existed in December 2009 i.e. at the time of filing of the suit.

9. Learned counsel for the petitioner next submits that Additional JCC passed the impugned order dated 12.09.2014 on application 15-C filed by the respondents wherein it was contended by the plaintiff petitioner vehemently that as there is no decree in existence, no execution related to execution can be called for. However, the court below has observed that this fact would not create an impediment in compliance of the order of this court. Defendants have stated before the court that they are ready to pay sale-consideration and get the deed executed in their favor, which is obvious in the order of the High Court itself.

10. The learned court below has directed the plaintiffs/petitioners to appear before the Registry office on 18.9.2009 at 12:00 hrs. in the day, and after receiving Rs.9,18, 800/- from the defendants, execute the sale deed in favor of the defendants (present respondents). It also stated in the said order that a four months' period has been prescribed by this court for the execution of the sale deed, but in this period, the plaintiffs has not executed the sale deed for which he himself is responsible.

11. Learned counsel for the petitioners further submitted that the petitioner had filed Regular suit no. 439 of 2009 for the portion of the aforesaid house by metes and bounds against respondent/defendants. In aforesaid defendants/respondents appeared and filed a written statement with counter-claim and an application under Section 4 of the Partition Act, inter alia, stating therein that as the house is a dwelling house and as per law if a stranger purchases the house and files a suit for partition, he has a right to purchase the shares in the house of the petitioner by paying sale- consideration of Rs.9,00,000/- only and not more, as determined by the court.

12. The learned trial court, after appreciating the pleadings of the parties, including the counter-claim and evidence, decreed the suit filed by the petitioners/plaintiffs on

20.01.2016 holding that they are lawful owners of 3/4 share in the house and are entitled to get the same by decree of partition. As the defendants declined to purchase their share by a sale-consideration of Rs. 80,00,000/- determined by the court. The learned first appellate court, without legally applying its mind to the facts of the case, set aside the decree passed by the learned trial court.

13. He has next submitted that as directed by this court, after remand, the learned trial court, appointed Sri Sanjay Saxena (an architect) as valuer and required him to submit a report regarding the valuation of the 3/4 share of the house. The said valuer did not visit the spot and submitted that valuation of 3/4 share of the petitioners has come to Rs. 9,18,800 in December 2009.

14. The petitioners have filed an objection against the valuation report and stated that it was not correct, but the learned trial court accepted the report, ignoring the objection 4 A227 No. 6609 of 2025 filed by the petitioners. The respondents had time to purchase 3/4 share of the house upto 06.09.2024, but he failed to do so with oblique motive and mala fide intention, just to overcome the period fixed by this Court and after expiry of the said period, the respondents moved an application C- 57 before the court below, seeking a direction to the petitioner to execute the sale deed of 3/4 share of the property in question. However, the respondent neither submitted demand draft of the proposed sale deed nor disclosed the manner and mode of payment of consideration. Further, the respondent had neither tendered the sale consideration payable to the petitioner nor provided proof of his ability to pay the sale consideration. The petitioner had submitted an oral objection against the application C-57, wherein he contended that the decree had already been set aside in the Second Appeal number 202 of 2017, thus, without decree passed in lawful manner, execution was not possible. However, the court below, without considering the objection filed by the petitioners in a proper perspective, overruled the same and passed the impugned order dated 12.09.2024. He next submitted that the petitioners filed Civil Appeal No. 192 of 2024 against the impugned order dated 18.09.2024 passed by the learned trial court on various grounds but the same was dismissed on 17.09.2025 in a cursory manner.

15. The present petition has been filed wherein orders of both the courts below orders are assailed and challenged.

16. The learned trial court illegally put the blame on the petitioner wherein the respondents have never approached them to accept the sale consideration of Rs.9,18,800/- and to execute the sale deed in his favor, which is a condition precedent. This itself vitiates the orders under challenge in view of the expiry of four months' period fixed by this Court in the order dated 17.02.2022. Learned trial court in absence of extension of time by this court, became functus officio and lost jurisdiction to pass the impugned order dated 12.09.2024. Both the courts below, while passing the orders under challenge, failed to appreciate the settled principles of law that once the period of limitation running it cannot be stopped by filing an application and representation. Both the courts below, while passing the order under challenge, have failed to appreciate that in absence of a valid decree, no direction for execution of the sale deed can be issued to the petitioners after the expiry of four months. Moreover, equity lies in favor of the petitioners and both the orders under challenge are liable to be set aside. A decree of execution of the deed can only be executed in terms of the Order 21 Rule 34 C.P.C. and for that reason a preliminary decree ought to have been drawn in terms of the orders of this Court in second appeal and only thereafter execution of sale-deed could be carried out.

co-sharer) be first allowed to purchase the share of the plaintiffs within a reasonable period of four months thereafter and in case if he fails to do so, the parties shall be free to move the Court for getting their shares separated as per law provided there is no other legal impediment in doing so. Thus the substantial questions of law as framed at Serial No. (i) stands answered.

8. He next submitted that the learned court of first instance ( Additional JCC Court No. 19) acting in compliance of the order passed by this court in the second appeal, passed an order on application A-500 on a valuer report on 07.05.2024, whereby the valuer's report was accepted. In it, the valuer had quantified the value of the property proposed to be purchased by the present respondents as Rs. 9,18,000/- and on objection of the plaintiff- Mukesh Kesharwani and another in Original Suit number 436 of 2009, (New No. 1773 of 2023), this valuation was done in terms of the value of 3 A227 No. 6609 of 2025 the property as existed in December 2009 i.e. at the time of filing of the suit.

9. Learned counsel for the petitioner next submits that Additional JCC passed the impugned order dated 12.09.2014 on application 15-C filed by the respondents wherein it was contended by the plaintiff petitioner vehemently that as there is no decree in existence, no execution related to execution can be called for. However, the court below has observed that this fact would not create an impediment in compliance of the order of this court. Defendants have stated before the court that they are ready to pay sale-consideration and get the deed executed in their favor, which is obvious in the order of the High Court itself.

10. The learned court below has directed the plaintiffs/petitioners to appear before the Registry office on 18.9.2009 at 12:00 hrs. in the day, and after receiving Rs.9,18, 800/- from the defendants, execute the sale deed in favor of the defendants (present respondents). It also stated in the said order that a four months' period has been prescribed by this court for the execution of the sale deed, but in this period, the plaintiffs has not executed the sale deed for which he himself is responsible.

11. Learned counsel for the petitioners further submitted that the petitioner had filed Regular suit no. 439 of 2009 for the portion of the aforesaid house by metes and bounds against respondent/defendants. In aforesaid defendants/respondents appeared and filed a written statement with counter-claim and an application under Section 4 of the Partition Act, inter alia, stating therein that as the house is a dwelling house and as per law if a stranger purchases the house and files a suit for partition, he has a right to purchase the shares in the house of the petitioner by paying sale- consideration of Rs.9,00,000/- only and not more, as determined by the court.

12. The learned trial court, after appreciating the pleadings of the parties, including the counter-claim and evidence, decreed the suit filed by the petitioners/plaintiffs on

20.01.2016 holding that they are lawful owners of 3/4 share in the house and are entitled to get the same by decree of partition. As the defendants declined to purchase their share by a sale-consideration of Rs. 80,00,000/- determined by the court. The learned first appellate court, without legally applying its mind to the facts of the case, set aside the decree passed by the learned trial court.

13. He has next submitted that as directed by this court, after remand, the learned trial court, appointed Sri Sanjay Saxena (an architect) as valuer and required him to submit a report regarding the valuation of the 3/4 share of the house. The said valuer did not visit the spot and submitted that valuation of 3/4 share of the petitioners has come to Rs. 9,18,800 in December 2009.

14. The petitioners have filed an objection against the valuation report and stated that it was not correct, but the learned trial court accepted the report, ignoring the objection 4 A227 No. 6609 of 2025 filed by the petitioners. The respondents had time to purchase 3/4 share of the house upto 06.09.2024, but he failed to do so with oblique motive and mala fide intention, just to overcome the period fixed by this Court and after expiry of the said period, the respondents moved an application C- 57 before the court below, seeking a direction to the petitioner to execute the sale deed of 3/4 share of the property in question. However, the respondent neither submitted demand draft of the proposed sale deed nor disclosed the manner and mode of payment of consideration. Further, the respondent had neither tendered the sale consideration payable to the petitioner nor provided proof of his ability to pay the sale consideration. The petitioner had submitted an oral objection against the application C-57, wherein he contended that the decree had already been set aside in the Second Appeal number 202 of 2017, thus, without decree passed in lawful manner, execution was not possible. However, the court below, without considering the objection filed by the petitioners in a proper perspective, overruled the same and passed the impugned order dated 12.09.2024. He next submitted that the petitioners filed Civil Appeal No. 192 of 2024 against the impugned order dated 18.09.2024 passed by the learned trial court on various grounds but the same was dismissed on 17.09.2025 in a cursory manner.

15. The present petition has been filed wherein orders of both the courts below orders are assailed and challenged.

16. The learned trial court illegally put the blame on the petitioner wherein the respondents have never approached them to accept the sale consideration of Rs.9,18,800/- and to execute the sale deed in his favor, which is a condition precedent. This itself vitiates the orders under challenge in view of the expiry of four months' period fixed by this Court in the order dated 17.02.2022. Learned trial court in absence of extension of time by this court, became functus officio and lost jurisdiction to pass the impugned order dated 12.09.2024. Both the courts below, while passing the orders under challenge, failed to appreciate the settled principles of law that once the period of limitation running it cannot be stopped by filing an application and representation. Both the courts below, while passing the order under challenge, have failed to appreciate that in absence of a valid decree, no direction for execution of the sale deed can be issued to the petitioners after the expiry of four months. Moreover, equity lies in favor of the petitioners and both the orders under challenge are liable to be set aside. A decree of execution of the deed can only be executed in terms of the Order 21 Rule 34 C.P.C. and for that reason a preliminary decree ought to have been drawn in terms of the orders of this Court in second appeal and only thereafter execution of sale-deed could be carried out.