MANOJ MISRA,J. - (1.) Heard learned counsel for the petitioners; and Sri S.P. Pandey for the respondent no.1.
(2.) In Suit No.250 of 1968 a partition decree was passed which has been put to execution. There were three sets of claimants. One was Bharat Ram; the other was Rameshwari (daughter-in-law of Bhuwal Ram and widow of Badku Ram son of Bhuwal Ram); and the third was Moti Ram. Rameshwari died issue less and, therefore, the claimants emanating from branches of Bharat Ram and Moti Ram claimed that her share devolved equally on the remaining two branches and, as such, the said two branches had half share each. The respondent no.1-Anil Kumar, set up a claim that Rameshwari had executed a registered Will dated 13.10.1999 in his favour and, therefore, on the death of Rameshwari on 29.02.2002, her entire share came to him and, as such, he is entitled to â .. " share. In the meantime, in between the branches of Bharat Ram and Moti Ram, a compromise was entered into whereby they mutually divided the property in two halves. It appears that an Amin report was called for, which also supported the settlement between the aforesaid two branches. On the basis of the aforesaid compromise and the Amin's report, by order dated 22.02.2016, the execution was struck off in full satisfaction and Anil Kumar (respondent no.1) was given liberty to pursue the execution separately.
(3.) Anil Kumar (respondent no.1) aggrieved by the order dated 22.02.2016 filed Civil Revision No.44 of 2016 on the ground that the execution of a partition decree could not have been struck off on the application of two sets of claimants when there were three sets of claimants and each set had one-third share, more so, when the issue whether Rameshwari had left a Will in favour of Anil Kumar was yet to be decided. It was claimed that since Rameshwari admittedly had â .. " share in the property and a registered Will in respect of her right had been set up by him, the said issue had to be decided by the execution court and only thereafter the execution could have been struck off.;