TATIA, J. - (1.) HEARD learned counsel for the petitioner.
(2.) ACCORDING to the learned counsel for the petitioner, a suit No. 21/77 filed by Panna Lal & Others against Heera Ram & Others for declaration and possession was decreed on 11. 10. 1984. ACCORDING to the petitioner, the land is not falling within the boundary specified in the decree for which the decree for possession was passed by the Trial Court. On 13. 12. 2004, the Assistant Nazir of the executing court, in pursuance of the directions of the executing court, came to the petitioner's house and put the locks on the main door. It is submitted that the petitioner was neither party in the original suit nor was made party in execution proceedings nor any application was moved by the decree holder to dispossess the petitioner from the property. When the house of the petitioner was locked, the petitioner submitted an application under Section 151 C. P. C. narrating all facts and prayed that the petitioner's property is not falling in the property specified in the decree- sheet and, therefore, Commissioner may be appointed to take measurement and to open lock forthwith. The executing court appointed Commissioner to give report with respect to the property of the petitioner. The Commissioner submitted his report and according to the petitioner, by this report, it become clear that some part of the house of petitioner falls outside the land specified in the decree sheet. The Trial Court after hearing arguments on the application under Sec. 151 C. P. C. rejected the same on the ground that the petitioner should file appropriate proceedings and no relief can be granted under Section 151 C. P. C. to petitioner. This order was passed on 20. 12. 2004. On 11. 1. 2005, the executing court passed the order directing the local administration, municipal authorities and police to assist for execution of possession warrant. The executing court fixed the execution case on 22. 2. 2005. In the above circumstances, the petitioner submitted an objection petition under Order 21 Rule 99 & 101 read with Section 151 C. P. C. on 11. 1. 2005 before the executing court. The petitioner's objection petition was registered as Misc. Case No. 4/2005. The petitioner also submitted an application seeking stay of execution. This application appears to have been submitted on 24. 1. 2005 inspite of the fact that the objection petition was submitted as back as on 11. 1. 12005. It appears that on 28. 1. 2005, the petitioner requested the executing court to pass interim order on the petitioner's application for grant of stay. The executing court observed that the petitioner made request on the date which has not been fixed in the case and no information/notice has been given to the decree holder. The Court observed that without hearing the decree-holder, no order can be passed. The Court further observed that the order will be passed after hearing both the parties and fixed the stay petition along with the main file on 22. 2. 22005. According to learned counsel for the petitioner, the executing court when came to know that the petitioner is in possession and he was not party in execution petition and he is resisting the execution of the decree, then the executing court should not have post the matter to a date beyond the time by which the decree was to be executed. Learned counsel for the petitioner also submitted that in view of the judgment of the Hon'ble Supreme Court delivered in the cases of Anwarbi vs. Pramod D. A. Joshi and Others (1), and Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and Another (2), the executing court should have stayed the execution proceedings till the decision of the petitioner's objection.
(3.) I have considered the submissions of the learned counsel for the petitioner. It appears from the impugned order dated 28. 1. 2005 that the petitioner requested the executing court to pass ad-interim order on a day when the case was not fixed for that purpose. It is clear from the facts mentioned above that the petitioner submitted objection petition under Order 21 Rule 99 and 101 C. P. C. It is also clear from the above facts that the stay petition was submitted by the petitioner before the executing court only on 24. 1. 2005 despite the fact that the execution court rejected the petitioner's application under Section 151 C. P. C. on 10. 1. 2005 and the petitioner himself submitted objection petition under Order 21 Rule 99 and 101 C. P. C. immediately thereafter on the next day itself but for the reasons best known to him did not not submit the stay petition along with the objection petition or did not press for interim order and submitted the stay petition and requested the Court to pass order forthwith and the Court observed that it will not be just and proper to pass any interim order without hearing the other party-decree holder. It appears that the petitioner was under impression that in execution petition, if any objection is filed, the Court is bound to stay the execution of possession warrant without examining the merit in the case and further the court is bound to pass the order as and when the order is sought by the aggrieved party. It will be worthwhile to quote the relevant portions from the judgments of the Apex Court in the above cited cases. ;