- (1.) The present writ petition arises out of execution proceedings whereby the two Courts below have rejected the application filed by the petitioner for delivery of possession in suit for partition. It appears that the petitioner filed suit No. 54 of 1977 in the Court of Munsif City, Azamgarh for partition of his half share in the property in question on the ground that the property is ancestral property. The said suit after contest was decreed in part by the Trial Court on 11th of May, 1981. The suit was dismissed in respect of one piece of the property on the finding that the said property was not proved to be ancestral property and was the self acquired property of the defendants.
(2.) The decree was challenged by way of appeal being Civil Appeal No. 413 of 1981 by the defendants who are respondents herein before the First Appellate Court who by its judgment and decree dated 21st of October, 1983 allowed the appeal in part. It modified the decree of the Trial Court by providing that the Pucca constructions standing over the land in suit shall be given to the appellants as their own in the final decree. The Counsel for the parties jointly agreed that the said judgment has attained finality as it has not been challenged any further by either of them.
(3.) Consequent upon the finality of the preliminary decree, steps were taken for preparation of final decree. In the proceedings of final decree, Amin was appointed who carved out Quras. The said Quras were confirmed by the Executing Court namely the Trial Court by its judgment and decree dated 22.5.1989. The said decree was subject matter of challenge in appeal being Appeal No. 291 of 1989: Sripat Yadav and others v. Mangla. The said appeal has been dismissed by the judgment and decree dated 11.2.1993. It has been informed that against the said judgment and decree a second appeal has been filed in this Court being second appeal No. 483 of 1993 and the second appeal is still pending. In the second appeal, on the stay application the following order has been passed: Issue notice, returnable at an early date. The partition proceedings and finalization of actual delivery of possession may go on in respect of the partition which was allowed by the Appellate Court vide its order dated 21st October, 1983 unless this judgment has been set aside by the Appellate Court.;