Mr. Rajiv Narain Raina, J.: - The challenge in this petition is to the order dated July 04, 2017 passed by the learned Additional Civil Judge (Senior Division), Tarn Taran in an application presented by the defendant judgment-debtor for staying the operation of the execution proceedings till final disposal of the pending application under Order 9 Rule 13 of the Code of Civil Procedure, 1908.

2. The application was contested by the opposite party/decree holder has been dismissed as not maintainable. In the original Court passed the decree since stay of execution proceedings is dealt with under Order 21 Rule 26 CPC which can be moved only before the Executing Court to whom the execution has been sent for satisfaction of the decree. The trial Court has held that it is not empowered to stay execution proceedings in an application under Order 9 Rule 13 CPC.

3. The plaintiff filed a suit against the defendant/petitioner for gaining possession of the suit land described in the head note falling in the revenue estate of village Kasel, Tehsil Tarn Taran, Amritsar. The plaintiff was a non-resident Indian and co-owner in the suit land. The plaintiff obtained an ex parte decree from the Civil Court on May 30, 2003. The sale deed executed in favour of the petitioner by proforma respondent No.2/defendant was declared void and also the subsequent sale deeds executed by the petitioner. Petitioner denies proper service of the suit and asserts he had no knowledge of the proceeding which led to ex parte decree. Neither was he served with proper summons in the execution proceedings. The petitioner avers that after 13 years on February 26, 2016 he visited the office of the Patwari Halqa of village Kasel for some official work and there was informed by the Patwari that one Balwant Singh-respondent had obtained an ex parte decree against him and is now trying to get possession of the disputed land through warrants of possession. He says that he inquired into the matter and obtained a certified copy of the judgment and decree dated May 30, 2003 and proceeded to file an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree. This application is pending adjudication in the court at Tarn Taran. The next date is October 05, 2017.

4. This led the petitioner to file an application for stay of execution proceedings pending decision on the application under Order 9 Rule 13 CPC. The application has been dismissed together with the objections filed by the petitioner to the execution by a common order dated May 15, 2017. This order decides the objections filed by the JD No.3, the petitioner. The application has been filed under Order 21 Rule 11 for execution of the decree in the Court of the Additional Civil Judge (Senior Division), Tarn Taran. The execution application was presented on February 04, 2011 and the same has been decided on July 04, 2017, the order which is under challenge in the present petition. It was argued by JD that the decree was obtained in a fraudulent manner by getting JD No.3 ex parte after giving his wrong name and address for which separate application under Order 9 Rule 13 CPC has been moved and is pending for recall of order proceeding ex parte.

5. On notice, the decree holder entered contest. He stated that petitioner had full knowledge of the proceedings in the Civil Court but he intentionally did not appear and has after many years applied for setting aside ex parte proceedings.

6. An important facet has surfaced in the order in para.6 where the learned Judge records an admitted fact that JD No.3, the present petitioner, has no right left in the suit land since he is neither owner nor in possession of the corpus as he has already sold the land to JDs No.5 to 7. Thus, no direct harm would be caused to JD No.3 in case the present execution proceedings are allowed to carry on to their logical end.

7. Ordinarily, in the presence of an application under Order 9 Rule 13 for setting aside the ex p