DURGA PRASAD Vs. GAURI SHANKAR

JUDGEMENT

(1.) THESE execution second appeals arise out of the same decree and can conveniently be disposed of by one judgment. I have heard the learned counsel for the parties and have perused the record.

(2.) A final decree in a partition suit between Gauri Shankar respondent and Durga Shankar appellant was passed in favour of the former on 1-10-51 granting the following reliefs: - A Exclusive possession over some house properties. B. Exclusive possession over some agricultural land. C. Costs of the suit. D. Right of worship and of receiving offerings in Charbhuja Temple Pushkar between Asoj Sudi 3 and Asoj Sudi 2 once in four years. Gauri Shankar's first turn of worship after the decree came on Asoj Sudi 3, S. 2009 (22-9-52 ). This turn was to have come to end on 10-10-53. He filed the first execution application No. 534 of 1953 on 16-7-53, that is before the turn of worship had came to an end. In this execution application he only claimed relief 1) namely the right of worship and receiving offerings. Notice was issued to the judgment-debtor who appeared and look time for filing objections. Time was granted to him upto 22. 10. 53. The turn of worship of Gauri Shankar however came to on end on 10. 10. 53 and this execution application accordingly became infructuous. On 22-10-53 the decree-holder made a statement that he did not want to proceed with the execution application for the present and the execution application was struck on.

(3.) COMING now to the second objection that piecemeal execution is barred, I have carefully considered the arguments advanced by the learned counsel for the ; parties aad I am of the opinion that precemeal execution is not barred. It may be that in certain cases there are circumstances from which it can be inferred that the decree-holder executing a decree for money for a lesser sum can be taken to have waived his right to levy execution for the balance.