Failure to move an application for stay of the decree before the court which passed the decree, and the dismissal of a similar application by the executing court, led to the dismissal of the petition.

G.C.Garg, J.

1. The brief facts of the case are as under:

Harbhajan Singh filed a suit against Mangal Singh and others for specific performance of the agreement to sell. Prem Singh, present petitioner was impleaded as defendant No. 4 in the suit for specific performance. After Prem Singh was proceeded ex parte, the suit was ultimately decreed by the trial Court. Since the decree was not complied with, the decree holder took out execution. On receipt of the notice of the execution application, the petitioner filed an application under Order 9 Rule 13 of the Civil Procedure Code, before the Court decreeing the suit for setting aside the ex parte decree on the ground that he had not been served and was wrongly proceeded against ex parte. It is stated that the application is pending though it seems to have been moved about more than six years back. Be that as it may, nothing turns on the pendency of the application under Order 9 Rule 13 Civil Procedure Code. The petitioner feeling that the executing Court will proceed with the execution of the decree moved an application for stay of the execution proceedings pending disposal of the application under Order 9 Rule 13 Civil Procedure Code. The matter was considered by the executing court and Shri Kuldip Singh, Sub Judge, 1st Class, Samrala vide orders dated 6.5.1992 dismissed the application. Petitioner perhaps was still not satisfied and moved another application. This application came to be dismissed by the executing Court vide Order dated 17.5.1993. While dismissing the application, the executing Court further approved the draft of the sale deed and appointed Shri Fateh Singh, Steno of the Court as Local Commissioner to execute the sale deed. It is this order of the executing Court which is under challenge at the instance of Prem Singh, defendant No. 4.

2. After hearing the learned counsel for the parties and having regard to the case, in my opinion the petition has no merit and deserves to be dismissed.

3. If deserves to be noticed that the petitioners did not move an application for stay- of the decree before the Court which passed the decree and before whom an application under Order 9 Rule 13 Civil Procedure Code is pending adjudication. Secondly, similar application moved by the petitioner was dismissed by Shri Kuldip Singh, Sub Judge, 1st Class, Samrala vide Order 16.5.1992 and second application for claiming the same relief did not lie.

4. In view of the above, the revision is dismissed with costs which are assessed at Rs. 5,000/-.

5. The parties through the counsel are directed to appear before the executing Court on 11.11.1998 for further proceedings in accordance with the law.

6. Since it was stated at the Bar that application under Order 9 Rule 13 Civil Procedure Code filed by the petitioner is still pending adjudication before the trial Court, it is directed that the trial Court will dispose of this application on the date already fixed are within one month thereof in accordance with the law.