DR. JAGJIWAN KUMAR CHOPRA Vs. SARDARNI MOHINDER KAUR

JUDGEMENT

(1.) The petitioner was ejected from the shop in dispute in execution of an ex parte ejectment order. Thereafter, he filed objections under Section 47, Civil Procedure code, that the ejectment order was executed fraudulently because the dispute had been compromised between the parties and the decree holder had given up his right of ejectment after accepting full payment of the rent. He also moved an application for setting aside the exparte order which was somehow dismissed and the appeal against that is pending.

(2.) This application was moved for restoration of the possession; pending his petition under Section 47, Civil Procedure Code and rejected by the impugned order dated June 19, 1981 by the executing Court. Aggrieved thereby, he has come up in this revision petition.

(3.) The executing Court has dismissed the application on the ground that it had no jurisdiction to restore the possession. Learned counsel for the appellant, however, relying on Rule 26(2). Order 21, Civil Procedure Code, contends that the executing Court had the jurisdiction to order restoration of the possession pending petition under Section 47, Rule 26 applies only to a Court where the decree has been transferred for execution and the transferee Court has been given the power to stay execution to enable the judgment debtor to move the Court which passed a decree for the grant of the stay order and pending such application that Court has been empowered to restore the possession if it had already been delivered under sub-clause (2). Reliance on the provisions of Rule 26 is, therefore, wholly misconceived.