JUDGMENT

Satish Chandra, J. - The dispute relates to plot No. 243 in the town of Amheta, district Saharanpur. One Gokul Chand was the Zamindar of several Khewats including Khewats Nos. 23 and 299 to which this plot No. 243 appertaned. On his death his interest devolved on his two sons Raghubans Sahai and Rikhi Lal. Raghubans Sahai died in 1903 leaving his son Shambhu Nath. Rikhi Lal died in 1905 leaving behind him his widow Smt. Asha Devi, Rikhi Lal had executed a will of his half share in the family property in favour of his widow. On 17th August, 1908. Shambhu Nath and Smt. Asha Devi entered into a family settlement. Under it the lady was to get Rs. 1,300- annually, as maintenance and Shambhu Nath was to be the owner in possession of the entire property including the two Khewats to which plot No. 243 appertained. It was provided in the agreement that in case three half yearly instalments of the allowance were not paid, the lady will have a right to cancel the agreement and sue for possession. Shambhu Nath died in or about 1933 leaving a widow Smt. Cliampa Devi. Smt. Ghampa Devi committed default in payment of the instalments. Smt. Asha Devi exercised her rights under the agreement and cancelled it. She instituted a suit (No. 97 of 1935) in the Civil Court for possession over a half share of the entire family properties covered by the family settlement of 1908. The suit included Khewats Nos. 23 and 299. When the suit was instituted these two Khewats were numbered differently, namely 47 and 312. But it is agreed between the counsel that the land of these two khewats was the subject-matter of the suit. The suit was contested by Smt. Champa Devi as also by certain transferees from Shambhu Nath who were impleaded as defendants. The trial court dismissed the suit. It held that the clause for cancellation was in the nature of penalty and therefore not enforceable. The plaintiff appealed. The Court on 11th March, 1953, allowed the appeal and decreed the suit for possession on the finding that Smt. Asha Devi had a half share in the family properties and that she was entitled to cancel the agreement for default in payment of the maintenance allowance.

2. By this time Smt. Asha Devi appears to have died and was substituted by her son Vidya Prakash, who put the decree in execution on 27th February, 1956. The execution application prayed for possession over certain properties including plot No. 243 now in dispute. Though there was some controversy during arguments on this point but it appears to he clear that this plot was the subject-matter of the execution proceedings (vide Annexure C to the Writ Petition) It appears that Vidya Prakash the decree-holder on 27th February, 1961, sold his half share in plot No. 243 in favour of Dharam Prakash and Suresh Chandra, petitioners before me. On or about 1st April, 1961, Suit. Champa Devi, Judgment-debtor, made an application to the execution court that the execution was proceeding in relation to plot No. 243 which had been sold away by the decree-holder. The decree-holder has no longer any interest in the plot. The execution is, therefore, liable to be struck off. There upon the execution appears to have been struck oil on 16th April, 1962.

3. On or about 26th April, 152, the purchasers, who are the petitioners before me, made an application to the execution court for revival of the execution, for substitution of their names in place of the decree-holder, and for execution of the decree. This application was also contested by Smt. Champa Devi. On 16th April, 1962 Vidya Prakash and Smt. Champa Devi entered into an agreement where under Vidya Prakash relinquished his share in this plot. The two petitioners thereupon filed a suit for cancellation of the agreement and for possession over the half share in this plot in 1955. That suit is still pending. Because of the pendency of that suit the petitioners made an application to the execution court for staying further proceedings in execution. The execu