Specific performance and interim injunction cannot be granted against undivided shares pending partition by public auction.

The Plaintiffs sought specific performance of an Agreement to Sell dated 02.09.2022 regarding the Defendant's 50% undivided share in a property in Punjabi Bagh, New Delhi

The Defendant had previously filed a partition suit [CS(OS) 548/2022] without disclosing this Agreement, leading to a preliminary decree and the appointment of a Local Commissioner.

Because the property could not be partitioned by metes and bounds, the Court ordered a public auction on 06.05.2025.

The Plaintiffs filed the present application (I.A. 31785/2025) under Order XXXIX Rules 1 & 2 of the CPC, seeking an ad-interim injunction to restrain the Defendant from creating third-party interests and to stay the auction proceedings.

The Plaintiffs alleged the Defendant was backing out of the contract because the property value had significantly appreciated.

Whether the Plaintiffs are entitled to an interim injunction staying the court-ordered public auction of an undivided share that is the subject of an Agreement to Sell.

Whether the right of a transferee of an undivided share under Section 44 of the Transfer of Property Act justifies restraining the partition process of the entire property.

The Court applied Order XXXIX Rules 1 & 2 of the CPC regarding the grant of temporary injunctions.

It relied on Section 44 of the Transfer of Property Act, 1882, which stipulates that a transferee of a share in a dwelling-house or immovable property acquires the transferor's right to joint possession or part enjoyment, subject to the conditions and liabilities affecting the share.

The Court also referenced Section 4 of the Partition Act, 1893, regarding the right of pre-emption

and the equitable principle that specific performance is a discretionary remedy where monetary compensation may be an adequate substitute in the event of failure.

The Court reasoned that since the Defendant’s share in the property had not yet been demarcated or identified by metes and bounds, the Plaintiffs could not assert a right over a specific portion of the property to stall a partition-by-sale ordered in a separate suit.

The Court observed that under Section 44 of the TPA, the Plaintiffs "step into the shoes of the Defendant" and are only entitled to what the Defendant himself is entitled to—which, in this case, is the monetary value of his 50% share resulting from the auction.

The Court distinguished *Raju Sardana v. Pawan Arya* (2025), noting that while Section 44 allows the transfer of a share, it does not bar the legal process of partition or auction.

Furthermore, as specific performance is an equitable and discretionary remedy, the Court found no ground for an injunction when the Plaintiffs' interests could potentially be satisfied through the sale proceeds or by participating in the auction themselves.

It held that the Plaintiffs cannot restrain the auction of the property as the Defendant's share is yet to be demarcated.

The Court clarified that the Plaintiffs remain entitled to 50% of the sale proceeds in accordance with Section 44 of the TPA if the property is sold

and noted that the Plaintiffs are at liberty to participate in the public auction to purchase the property in its entirety.

The main suit was listed for further proceedings before the Joint Registrar on 13.04.2026.