RAM SURAT RAM (MAURYA),J. - (1.) Heard Sri Manish Dev Singh for the petitioner and Sri V.P. Rai for the caveator.
(2.) This petition has been filed against the order of Additional District Judge dated 2.3.2016 by which Misc. Appeal filed by third person/objector has been allowed and the matter has been remanded to the executing court for deciding the objection under Order 21, Rule 98 and 99 CPC on merit.
(3.) The argument of the counsel for the petitioner is that third person namely Chakit Kumar Mishra is not a stranger but son of Akhilesh Kumar Mishra who was judgement debtor in the suit and issue relating to title of Akhilesh Kumar Mishra has been raised by Akhilesh Kumar Mishra in the suit itself and it has been finally decided that Akhilesh Kumar Mishra is the owner of the property in dispute and agreement to sell was rightly executed by him, therefore the suit for specific performance of contract has been decreed and appeal filed by Akhilesh Kumar Mishra has been dismissed by the lower appellate court by order dated 18.2.2008. Thereafter no second appeal has been filed. In the absence of decree of the trial court the proceeding relating to execution of decree has been taken by the trial court. Now in the execution proceeding son of Akhilesh Kumar Mishra namely Chakit Kumar Mishra filed an application under Order 22, Rule 98 CPC. Chakit Kumar Mishra being son of Akhilesh Kumar Mishra is bound by decree. He further submits that Chakit Kumar Mishra derived his title on the basis of Will dated 9.2.1995 allegedly executed by Smt. Kesar Devi wife of Nagendra Dutt Sharma, who was maternal grand mother. He submits that Smt. Kesar Devi was surviving up to the year 1997 and suit was filed in the year 1986 but she did not contest the matter during her life time. Now on the basis of Will, Chakit Kumar Mishra cannot be permitted to contest the matter. He further submits that it has been well settled by this Court as well as by the Supreme Court that if the record is complete, the appellate court should decide the appeal on merit instead of remanding the matter and by the impugned order the matter has been remanded as such it is liable to be set aside.;