Mohd Arifeen (Now Deceased) Thr His Lrs v. Mohd Idrees (Now Deceased) Thr His Lrs

$~6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + MOHD ARIFEEN (NOW DECEASED) THR HIS LRS ..... Appellants Represented by:

Mr.Rajinder Mathur, Adv.

versus MOHD IDREES (NOW DECEASED) THR HIS LRS ..... Respondents Represented by:

None

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE YOGESH KHANNA

O R D E R

% 06.03.2017 CM No.8940/2017 Allowed subject to just exceptions.

CM No.8941/2017 For the reasons stated in the application delay of 36 days in re-filing the appeal is condoned.

1.

Mohd.Idrees and Mohd.Arifeen were brothers. They were partners of a firm M/s Mohd.Idrees Mohd.Arifeen. An industrial plot bearing No.B-

26/1 Wazirpur Industrial Area was demised in perpetuity by DDA to Mohd.Idrees and Mohd.Arifeen. The two brothers fell apart. Disputes and differences, including that of the partnership firm, were referred to an arbitrator who published an award on April 21, 2009, which was set aside. Fresh reference resulted in an award being published on December 23, 2011. The award has attained finality. As per the award share of Mohd.Arifeen has been determined at 10% in the subject property and that of Mohd.Idrees at 90%. The value of the property at Wazirpur Industrial Area was assessed at `2.85 crores. Mohd.Arifeen having died, his legal heirs were given the first option to purchase the share of Mohd.Idrees. They did not do so. The result was that right in the property was vested in Mohd.Idrees with entitlement of Mohd.Arifeen to `28.5 lakhs.

In this manner Mohd.Idrees became the decree holder and the legal heirs of Mohd.Arifeen became judgment debtors. Execution of the award was sought. One Vijay Kumar Gupta claimed assignment under the decree holder by relying upon Agreement to Sell as per which full sale consideration was given to Mohd.Idrees and possession taken over. He was substituted as a decree holder vide order dated February 12, 2015. Thereafter, EA No.1161/2015 was filed by the judgment debtors seeking recall of the order. Vide impugned order dated November 29, 2016 said application has been dismissed. After noting aforesaid facts the learned Single Judge has noted that to satisfy the award the decree holder has deposited `35,46,055/- in this Court.

reported as AIR 1955 SC 376 Jugalkishore Saraf V. Raw Cotton Co. Ltd., the assignment was not valid. The learned Single Judge has noted that as per the judgment cited on equitable principles substitution could be effected. The relevant extracts of the decision are as under : "....When on a true construction of the deed it actually operates to transfer a decree then in existence, no equitable principle need be invoked, for in that case the transfer is by the deed itself and as such is by an assignment in writing. It is only when the deed does not effectively transfer the decree because, for instance, the decree is not then in existence, but constitutes only an agreement to transfer the decree after it is passed that the invocation of the equitable principle becomes necessary and it is in those circumstances that equity fastens and operates upon the decree when it is passed and effects a transfer of it."

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36. The result of the authorities appears to me to be that if by reason of any provision of law, statutory or otherwise, interest in property passes from one person to another there is a transfer of the property by operation of law. There is no reason that I can see why transfers by operation of law should be regarded as confined to the three cases referred to by the Privy Council in Abedoonissa's case (V). If, therefore, I were able to construe the document of the 7-2- 1949 to be a transfer or an agreement to transfer the decree to be passed in future then I would have had no difficulty in holding that by operation of equity the beneficial interest in the decree was immediately after its passing taken out of the transferors and passed to the respondent company and that the latter had become the transferees of the decree now sought to be executed by operation of law.

2.

Same contention as was advanced before the learned Single Judge has

been advanced before us. Keeping in view the facts that the law declared by the Supreme Court which has been correctly appreciated by the learned Single Judge, we find no merit in the appeal. Suffice to state that objections on merits to the execution of the award would now be dealt with by the learned Single Judge as per law.

3.

The appeal is dismissed.

4.

No costs.

CM No.8939/2017 Since the appeal has been dismissed in limine instant application which seeks a stay of the operation of the impugned order is dismissed as infructuous.

PRADEEP NANDRAJOG, J YOGESH KHANNA, J MARCH 06, 2017 VLD