Shweta Marwaha and Another vs Vinayak Marwaha

V.K. Jain, J.—The suit was filed by Shweta Marwaha and Shubhra Marwaha, daughters of late Shri Vinayak Marwaha against him. The suit resulted in a compromise decree being passed on 26.05.1995. The suit was decreed in terms of the family settlement Ex.C-1 and the site plan Ex.C-2 which formed part of the decree.

At the time of the settlement, Shubhra Marwaha-

The learned Counsel for the judgment debtor has registered the execution on the following grounds:

(i) Late Shri Vinayak Marwaha owned properties other than house No. C-36A, Kalkaji, New Delhi and a petition seeking Letter of Administration for administration of his estate has already been filed and is pending.

(ii) The decree of the Court is silent with respect to the rights in the terrace of the second floor.

(iii) The access of the first and second floor can be obtained only through the ground floor portion which had fallen to the share of late Shri Vinayak Marwaha and which is now in the possession of the objector Smt. Madhubala Marwaha, who was the second wife of late Shri Vinayak Marwaha and her daughter, both of whom are amongst his Class I legal heirs.

(iv) Being a co-owner of the property, the objector and her daughter have a preferential right to purchase the share of the decree holders/Plaintiffs in the suit property.

I find no merit in any of the objections raised by the judgment debtor. This being the petition for execution of a consent decree passed by this Court, need not and cannot go into the question as to whether late Shri Vinayak Marwaha owned properties other than property subject matter of the consent decree and what would be the share of the parties in that property. Being an executing Court, this Court cannot go behind the decree and has to execute the decree as it stands. The pendency of the petition for grant of Letter of Administration to administer the estate of late Shri Vinayak Marwaha also has no bearing on the execution of the decree passed by this Court. The question as to who is entitled to the terrace of the second floor is an issue which can be decided later after hearing the parties, being a matter which can be said to be clarificatory in nature. But as far as the first and second floor are concerned, possession of those two floors needs to be forthwith delivered to the Plaintiffs/decree holders in execution of the consent decree passed by this Court.

Coming to the access to the first and second floor, a perusal of the site plan Ex.C-2 would show that there is a staircase at the back of the site which leads to the first and second floor. Obviously, the decree holders/Plaintiffs would be entitled to access the first and second floor only through staircase without in any manner entering any part of the premises occupied by the objector on the ground floor.

The learned Counsel for the objector has expressed apprehension that if the same entrance is used by the parties, that may jeopardize the safety of the objector in case the occupants of the first and second floor come late or leave the entrance unlocked. That aspect, in my view, can be taken care of by installing a lock which can be opened from inside as well as from outside using the same key and one key of that lock can be retained by the objector whereas the other key can be delivered to the decree holders/applicants. If there are three keys of the lock, two out of them can be given to the Plaintiffs/decree holders and one key can be retained by the objector. It will then be possible for the objector to lock the door from inside and it will also be possible for the occupants of the first and second floor to open the lock from outside in order to access the first and second floor.

For the reasons given in the preceding paragraphs, be issued warrant of possession of the first and second floor of property No. C-36A, Kalkaji, New Delhi in favour of decree holders.

The decree holders/Plaintiffs will be entitled to use the first and second floor in terms of the directions contained in this order.

List this matter for hearing on 20th January, 2012 on the question as to who will have rights in the terrace of the second floor of the suit property.