SHAM BHATIA Vs. RAJU ALIAS RAJU MASIH

JUDGEMENT

(1.) Appellant is the legal heir of decree-holder, who had died after obtaining the decree against respondent, who happens to be the real son of the original decree holder. The decree of possession passed at the instance of the father i.e. the decree-holder against his real son i.e. the respondent attained finality and thereafter, appellant who also happens to be another son of the decree-holder, had filed an execution petition while relying upon a registered Will of 19th May, 2011. The executing court in the impugned order of 8th June, 2016 has held that the validity of any Will is not required to be gone into in the execution proceedings. It is noted in the impugned order that the possession of the suit property was taken by the appellant on 17th March, 2016 in execution of warrants whereas application under Order 21 Rule 26 of CPC was filed by the respondentherein on 15th March, 2016. The mistake of the court pointed out by executing court in the impugned order is that when application under Order 21 Rule 26 CPC was pending, then there was no occasion for issuance of warrants of possession.

(2.) At the hearing, learned counsel for appellant submitted that the executing court has erred in holding that during the pendency of the application under Order 21 Rule 26 of CPC, the decree stood executed. Attention of this Court is drawn to the executing court's order of 15th December, 2016 to show that before the next date i.e. 18th March, 2016, there is a noting of 17th March, 2016 by the concerned Naazir that the decree stood executed.

(3.) Attention of this Court is also drawn to the bailiff's report of 8th March, 2016 to show that the decree infact stood executed on 8th March, 2016 itself and the possession of suit property was given to appellant. It is pointed out that respondent's application under Order 21 Rule 26 of CPC was not maintainable on 15th March, 2016 as the decree stood executed on 8th March, 2016. To submit so, it is pointed out that Order 21 Rule 26 of CPC provides for stay of the execution and once execution has already taken place, the stay application was not maintainable and executing court has gravely erred in allowing the respondent's application under Order 21 Rule 26 of CPC and has directed appellant to restore the possession of the suit premises to the respondent.