JUDGMENT :

S.C. Mohapatra, J. - judgment Debtor No. 1 is the petitioner assailing the order of refusal of her application under Order 21, Rule 29, Civil Procedure Code, by the Executing Court.

2. After obtaining the preliminary decree for partition was confirmed in this Court in First Appeal, final decree was passed ex parte and the said decree is being executed. Having failed in the first round " of attack of the decree u/s 47, C. P. C, a suit has been filed by the petitioner in the Court of First Subordinate Judge, Cutback, for specific performance of a contract for sale with the vendor of the decree-holder. Plaintiff-petitioner claims to be in possession of the disputed property delivered to her on the basis of such oral contract or sale in the year 1967.

3. In the same Court where the execution application is pending, a suit by the judgment-debtor against the decree-holder is also pending. However, on mere satisfaction of this pre-condition, the execution proceeding is not to be stayed. As has been observed in Shaukat Hussain alias Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and Others, :

"It is obvious from a mere perusal of the rule that there should be a simult