U.C. Dhyani, J.(Oral)

By means of present second appeal, defendants/Judgment Debtor/appellants seek to set aside the judgment and decree dated 19.08.2014, passed by learned Addl. District Judge, Kashipur, District Udham Singh Nagar in Misc. Civil Appeal no. 36 of 2012, titled as Thakur Singh and others vs Bhimsen and other, as also the judgment and order dated 10.02.2012, passed by learned Civil Judge (S.D.), Kashipur, District Udham Singh Nagar in Civil Execution no. 02 of 2009, captioned as Bhimsen vs Thakur Singh and others.

2. Plaintiff/respondent no. 1 is the decree-holder in the instant case and the second appeal has been preferred against the judgment and decree dated 19.08.2014, passed by learned Addl. District Judge, Kashipur, District Udham Singh Nagar.

3. After hearing learned counsel for the appellants and respondents, following substantial question of law is framed in present second appeal:

“Whether executing court can execute the decree in part or can it only be executed as a whole?”

4. On the last day of hearing, learned counsel for the parties stated that no lower court record is required and the second appeal may be disposed of on the basis of certified copies already made available on record. In view of above submission, this Court proceeds to decide present second appeal on the basis of documents already available on record.

5. Plaintiff no. 1/respondent no. 1 filed an O.S. against the predecessor-in-interest of appellants and respondent no. 2 for specific performance of an agreement to sell the immovable property. The said suit was decreed by the trial court. Aggrieved against the said judgment and decree, the defendants preferred first appeal before learned District Judge, which was dismissed. Still aggrieved against the same, defendants preferred second appeal, which too was dismissed by this Court.

6. When the plaintiff/decree-holder/respondent no. 1 filed execution case no. 02 of 2009, titled as Bhimsen vs Thakur Singh and others before learned Civil Judge (S.D.), Kashipur, District Udham Singh Nagar, the executing court partly allowed the objections under Section 47 C.P.C. and directed the decree-holder to place the draft sale deed in the executing court within 15 days and decree-holder was also directed to pay the balance amount to the judgment debtor or else to deposit the same in the court to facilitate the execution of sale deed. Such an order was passed on 10.02.2012. Aggrieved against the same, defendant/judgment debtor/ appellant preferred a civil revision, which was converted into Misc. Civil Appeal and was decided on 19.08.2014 by learned Addl. District Judge, Kashipur, which judgment is under challenge in this second appeal. Learned lower appellate court upheld the decision of the executing court.

7. Although there appears to be no illegality in the orders of the courts below, in as much as no law prohibits the executing court to execute the decree in part, the misc. civil appeal filed against the impugned orders appears to be not maintainable. Same view was expressed by Hon’ble Allahabad High Court in the decision of Dhir Singh vs Peer Bux and another, AIR 1979 ALLAHABAD 22. Relevant paragraphs of said judgment are reproduced here-in-under:

“Now a second appeal does not lie from an order passed on appeal under S. 104 reach with O. XLIII of the C.P.C. Nevertheless, this Court has jurisdiction to revise the order under S. 115 of the C.P.C.”

“..…..Accordingly, although no appeal lies from the order of the Court of the Civil Judge, Bijnor, on appeal from the executing court’s order under O. XXI, R. 90, I consider the case to be a fit one for the exercise of the revisional powers of this Court under S. 115 of the C.P.C., and do in the exercise of those powers suo motu set aside the order of the Civil Judge, Bijnor in Misc. Civil Appeal No. 3 of 1968 and restore the order of the Court of Munsif, Bijnor in Misc. Case no. 113 of 1966 of his Court…….”

8. Similar view has bee