The executing Court had no jurisdiction to restore possession pending a petition under Section 47, Civil Procedure Code, unless the ejectment order was set aside or a compromise was concluded.

S.P.Goyal, J.

1. The petitioner was ejected from the shop in dispute in execution of an ex parte ejectment order. Thereafter, he filed objections under Section 47, Civil Procedure code, that the ejectment order was executed fraudulently because the dispute had been compromised between the parties and the decree holder had given up his right of ejectment after accepting full payment of the rent. He also moved an application for setting aside the exparte order which was somehow dismissed and the appeal against that is pending.

2. This application was moved for restoration of the possession; pending his petition under Section 47, Civil Procedure Code and rejected by the impugned order dated June 19, 1981 by the executing Court. Aggrieved thereby, he has come up in this revision petition.

3. The executing Court has dismissed the application on the ground that it had no jurisdiction to restore the possession. Learned counsel for the appellant, however, relying on Rule 26(2). Order 21, Civil Procedure Code, contends that the executing Court had the jurisdiction to order restoration of the possession pending petition under Section 47, Rule 26 applies only to a Court where the decree has been transferred for execution and the transferee Court has been given the power to stay execution to enable the judgment debtor to move the Court which passed a decree for the grant of the stay order and pending such application that Court has been empowered to restore the possession if it had already been delivered under sub-clause (2). Reliance on the provisions of Rule 26 is, therefore, wholly misconceived.

4. In the present case, the possession has been delivered in execution of ejectment order and unless that order is set aside or the executing Court comes to the conclusion after trial of the objections that the decree holder has agreed not to execute that order under the compromise, it obviously would have no jurisdiction to restore the possession. The learned counsel for the petitioner then contended that at the time of the taking of the possession, the decree-holder has also taken into possession the equipment and machinery of the judgment-debtor who was running his clinic there as dentist. If that be so, he may move an application in the executing Court for getting back the machinery and equipment.

5. In view of the above discussion, this petition fails and the same is hereby dismissed but without any order as to costs. However, as the business premises of the petitioner, who is a dentist, have been taken possession of which is affecting his practice, the executing Court is directed to dispose of the objections filed under Section 47 of the Civil Procedure code, within three months from today. The parties through their counsel, have been directed to appear in that Court on September 8, 1981, the date already fixed.