- (1.) THIS is a second appeal against the order of the Additional District Judge, ferozepore, dated 21st July, 1969 whereby the order of the executing Court was modified and the judgment-debtor's application under Section 47 of the Civil P. C. was accepted.
(2.) THE facts giving rise to this appeal are that one Nazar Singh had sold 30 Kanals 12 Marlas of land being one-eighth share of 316 Kanals 15 Marlas to Ujagar Singh, bahadur Singh and Banta Singh, sons of Ashok Singh, who are the respondents in this Court. The land was situated in village Ferozeshah. Nazar Singh had also created a mortgage over this and some other land of his in favour of Budh Singh and Inder Singh. In all 46 kanals 14 marlas of land had been mortgaged. The vendees redeemed the mortgage and got into possession of 46 kanals 14 marlas of land as Rs. 2573 had been left with them for payment to the mortgagee. The sale in favour of Ujagar Singh and his brothers was challenged by Karnail Singh, the son of Nazar Singh vendor, through a pre-emption suit in which a compromise decree was obtained by the plaintiff on 29th April 1968. According to the compromise, the plaintiff obtained a decree for 39 kanals 12 marlas being one-eighth share of 316 kanals 15 marlas against the vendees. In execution of this decree, vendor obtained actual possession of 46 kanals 12 marlas of land. The vendees-Ujagar Singh, Bahadur Singh and Banta Singh then filed an application under Section 47 of the Civil P. C. before the executing Court praying for the redelivery of possession to them. It was stated that the plaintiff had no concern with 7 kanals 2 marlas which they had redeemed from Budh Singh and Inder singh. It was also alleged that the plaintiff having got a decree for possession of one-eighth share of 316 kanals 15 marlas was entitled to actual possession of 39 kanals 12 marlas as the sale was not in respect of 46 kanals 14 marlas. The application was contested by the pre-emptor-decree-holder and on the pleadings of the parties the following two issues were framed:-- (1) Whether the application is maintainable after the execution application was dismissed? (2) Whether the decree-holder had taken possession of the land in excess of the decree? The Executing Court found both these issues in favour of the vendees but only ordered the redelivery of possession of 7 kanals 2 marlas and made no mention in this order of 39 kanals 12 marlas. Dissatisfied with the order of the executing court Karnail Singh filed an appeal and the vendees also filed cross-objections both of which were decided by the impugned order. The appeal of the pre-emptordecree-holder was dismissed while the cross-objections were accepted and the executing Court was ordered to redeliver the possession of the land to the judgment-debtors. It was further ordered that only symbolical possession would be delivered to the decree-holder.
(3.) BEING aggrieved the decree-holder has come up in appeal to this Court.;