- (1.) D. P. Singh, J.-Pleadings have been exchanged and the counsel for the parties agree that the writ petition may be finally disposed of under the Rules of the Court.
(2.) HEARD learned counsel for the parties. This writ petition is directed against the orders dated 7.12.1993 and 2.11.1996 by which the application of the petitioner for enlargement of time to make payment has been rejected. It would be appropriate to notice the relevant pedigree for a proper understanding of the dispute. Sunda Kaley Tota Bhunda Shami Nagli Mangu Jai Chandra Dharam Pal Krishna Jagwati Devi Devi
(3.) FROM the above pedigree, which is admitted between the parties, it is evident that Sunda was the original owner of the disputed dwelling house and was survived by his sons, namely, Kaley and Tota. Tota left behind his son Bhunda while Kaley was succeeded by Shami and Nagli. Shami and Nagli transferred their undivided share in the ancestral dwelling house in favour of Harkesh the contesting respondent No. 3. Harkesh filed Original Suit No. 713 of 1982 for partition and possession of his share. The trial court decreed the suit holding that Harkesh was entitled to half share in the suit property. On appeal though the order was confirmed vide order and judgment dated 23.4.1986, in consonance with Section 4 of the Partition Act (hereinafter referred to as the Act), an option was given to the petitioners to buy out the share from Harkesh after paying the value to be determined by the Court. Harkesh applied for execution of the decree on 22.9.1987 which was registered as Misc. Case No. 96 of 1983. The Court valued the property purchased by Harkesh at Rs. 15,000 and thus vide order dated 9.4.1993, it passed a conditional order that in case the petitioners pay Rs.15,000 within one month, Harkesh would execute a sale deed in their favour within 15 days failing which he could get the partition decree executed. The petitioners, before the expiry of the period made an application on 24.4.1993, alleging therein that they were prepared to pay the amount but requested the Court to fix a particular date before the Sub-Registrar before whom the petitioner would pay the amount and the sale deed may also be executed on the same date. However, Harkesh objected to the application which remained pending undisposed. After expiry of the period fixed for payment, the petitioners again made another application dated 3.12.1993, reiterating their earlier prayer and requesting for enlargement of time. Again objections were filed on behalf of Harkesh. Both these applications have been rejected vide order dated 7.12.1993 and a revision against the order was also rejected vide order dated 2.11.1996 holding that since it was a final decree and the time had been fixed, it could neither be amended nor the time enlarged. Learned counsel for the petitioner has urged that once he had applied for fixing a particular date before the expiry of period fixed for payment, it was the duty of the Court to have disposed of the application before the expiry of the period. It is further urged that the very object of Section 4 of the Act is defeated, even though the petitioners were ever prepared to pay the amount.;