GHULAM ASHRAT Vs. ABDUL KHALIK

JUDGEMENT

(1.) The present writ petition arises out of an order passed in execution case. The petitioner is a judgment debtor and the respondent no,.2 is decree holder,

(2.) The facts in brief are as follows: Rahim Bux, father of respondent, the father of respondent no. 1 mortgaged his property in favour of Sri Sidhu Noor Bux Son of Sri Makdhoom Bux by way of usufructory mortgage on 17-6-1924 of Rs. 250/-The respondent no. 1 (herein after called as decree holder) filed a suit being Suit No.530 of 1980 against the petitioner (herein after called as judgment debtor) and others for redemption of the mortgaged property executed by Rahim Bux, the mortgage deed dated 17-6-1924. The suit after contest was decreed on 23-11-1995 by the trial court with the condition that the decree holder is entitled to get possession over the mortgaged property on deposit of Rs. 250/- in the Court. The said decree has been confirmed in Civil Appeal No.54 of 1996 by the appellate court on 12-12-1996. The petitioner filed Second appeal being Second appeal no. 3467 of 1997 before this Court which was admitted on 8-4-1997 and is still pending consideration. On the stay application the Court has passed the following order:

(3.) In view of the partial stay order granted by this Court in the aforesaid Second appeal there was no hindrance in the execution of the decree for the remaining property. The decree holder put the decree for execution in respect of the property not covered by the aforesaid interim order passed by this Court. The executing Court on the application dated 17-11-1998 of the decree holder, appointed a Court Amin to prepare a map and submit report separating northern and southern portion of the house in dispute. According to the judgment debtor (petitioner) half of the southern portion of the house in dispute was mortgaged by Smt. Batoolan in respect thereof said stay order is operative. The Court Amin submitted a map and report dated 20-2-1999 excluding the portion covered by Paper no. 145- Ka (mortgage deed) dated 30-6-1924). The map and the report prepared by the Court Amin has been annexed along with the counter affidavit as Annexure-3 and 4 thereof. One of the objections raised by the judgment debtor under Section 47 C.P.C. which was pressed before this Court is, that the decree in question being preliminary decree is not liable to be executed unless and until a final decree is drawn. The said objection has been rejected by both the Court below, against which present writ petition has been filed