application under order 7(11) read with sec151cpc
(Querist) 28 April 2008
This query is : Resolved
By virtue of Registered Will dt.24/5/96, W became legal owner of all the properties left by her husband and the same were duly entered in her name in revenue/municipal/huda records to which all other legal heirs ( two sons-S1 & S2 and only daughter) gave their no objection by way numerous duly sworn affidavits stating “they have no objection if the properties are entered in the name of our mother as per contents of the Will dt.24/5/96 executed by our father”.
Later on W decided to distribute the properties between her two sons by mutual understanding and as per this verbal understanding within the family, S1 became owner in possession of Property A&B and S2 became owner in possession of property C.
To implement the above family settlement S2 filed a suit dt 14/9/2005(S2 vs W & S1) for declaration & injunction in the court of Civil Judge, Ludhiana praying that the Plaintiff/ S2 be declared as owner in possession of property ‘C’ and Defendant no 2/S1 be declared as owner in possession of Property A&B. Also prayed for injunction so that Defendant no 1/W may not anyway transfer the property C of which he/Plaintiff became owner in possession.
However to avoid further litigations, W implement the above family arrangement as per a compromise deed dt.22/12/2005 as under:-
• Property A situated at Ludhiana was transferred by her(because she was the legal owner in revenue records) in the name of wife of S1 by executing a registered deed before the Sub-Registrar, Ludhiana on 3/2/06. S2 himself signed the deed as an witness.
• Property B was transferred by her(because she was legal owner n huda records) in favour of S1.Necessary formalities to this effect were duly completed in the office of Huda, Gurgaon on 6/2/06.
• Property C, at the instance of S2/Paintiff, was sold by her(because she was the legal owner in revenue records) to a person duly selected by S2 and the entire sales consideration of Rs 41.54 lacs was received by S2- Rs.30.00 lacs which W received by Draft was duly credited to the saving A/c of S2 by account payee cheque dt. 11/2/06 and the same was withdrawn by the Plaintiff/S2 and balance in cash. S2 himself signed the sale deed as an witness on 8/2/2006.
Thus the abovementioned family arrangement was concluded for ever. In view of this compromise, a copy of which was filed in the court of Civil Judge,Ldh alongwith copy of sale deed of property C showing the photo of the Plaintiff as witness, the suit having become infurcteous in respect of Property C and the properties A&B, these belong to Defendant/S1 as himself admitted by the Plaintiff also have been transferred, thus the suit of the Plaintiff satisfied/decreed in full.
But for the last more than 2 years, the Plaintiff is seeking adjournments for no reason and the court comfortably acceding to the request of Plaintiff without listening to us.
2. Rather, the Plaintiff/S2 filed another suit(S2 vs S1 & W) in the Court of Civil Judge, Gurgaon, in which the Plaintiff alleged that he is not interested to give his share of Property B for want of complete settlement since the earlier settlement although made fraudulently has not been complied with by anybody, thus the Plaintiff has been cheated.
Now in view of the facts stated above this is a case of abuse of process of Law because the Plaintiff has not disclosed to the Gurgaon Court any of the facts stated hereinbefore.
Now in Gurgaon court, we have since filed our written statement along with an application under order 7(11) read with section 151 of CPC stating the above facts. We have filed a certified copy of the Plaint dt 14/9/05 in which the Plaintiff himself admitted that S1 is the owner in possession of Property B. But the Plaintiff comfortably seeking very long adjournments and has not filed any reply to our application under order 7(11).Please tell me the future of these two cases and the application filed under order 7(11) in
RAKHI BUDHIRAJA ADVOCATE
(Expert) 29 April 2008
If S2 is not filing the reply to your application in the court, then you & your lawyer sholud convince the judge on legal point and made a prayer before the Court by deciding the application in your favour, as S2 cease to file the reply. As per as the adjournments are concerned, your lawyer should take objections against the adjournments to S2. Because as per law a court can't adjourn the case without any specific reason.
(Expert) 08 September 2008
Rightly said by Rakhi Madam.