PRAKASH CHANDRA JAIN Vs. SHANTILAL JAIN

JUDGEMENT

(1.) By this petition, under Article 227 of the Constitution of India, petitioner -decree holder has taken exception to the order dated 26/9/2013 passed by the trial Court dismissing the execution application.

(2.) Facts necessary for disposal of this petition are in narrow compass.

(3.) A suit for declaration of title and permanent injunction, as well as, for removal of construction was decreed by the trial Court vide judgment and decree dated 13/4/1998. Civil Appeal No. 21A/98 arising therefrom at the instance of respondent -defendant was dismissed on 13/8/1999. However, this Court, allowed the second appeal vide judgment and decree dated 22/4/2009 passed in S.A.No.567/1999 and decree passed by the Courts below was modified to the extent that plaintiff was held entitled to the part of property fallen to his share as per release deed (Annexure P/1), share of Jadiya Bai and 1/3 rd share of the property which had fallen to the share of Mishrilal. Accordingly, the appeal was partly allowed to the aforesaid extent. Thereafter, the petitioner -decree holder filed the execution case for apportionment of the share of plaintiff. The executing Court, by detailed impugned order, has concluded that in absence of partition of the property in question amongst persons entitled for the share, it is not possible for apportionment of the share of plaintiff and, accordingly, rejected the execution case.