ORDER

1. The present petition under Article 227 of the Constitution of India is directed against the order dated 31.8.2021 passed by 11th Civil Judge, Class II, Gwalior in Case No.81-A/2001-2002 C.S., whereby an application filed under section 151 of CPC, for stay of the execution of the decree, on the pretext that since an objection under Order 21 Rule 97 CPC filed by the present petitioner is pending, was rejected. \

2. Brief facts of the case are that the plaintiff-decree holder Ramcharan Singh and others have filed a civil suit for possession and recovery of means profit in the year 1985 with regard to the land bearing Survey No.4147 and 4148 which was decreed vide judgment and decree dated 25.2.2002. On 17.7.2003 an execution of the aforesaid judgment and decree was filed. Prior to filing of the execution on 28.2.2003 the aforesaid survey numbers i.e. 4147 admeasuring 0.23 hectare and Survey No.4198 admeasuring 1.986 hectare total area 2.216 hectare were sold by way of registered sale deed to present respondents no.12 and 13.

3. Since the suit filed by Ram Charan Singh and others was with regard to the possession and recovery of the mesne profit with regard to the aforesaid survey numbers which was decreed but in the sale deed which was executed in favour of the present respondents no.12 and 13 it was mentioned that the possession thereof was handed over to the purchasers. This fact was although brought before the Court alongwith an application under Order 21 Rule 26 of CPC, but the same was rejected. Though once the property was sold and in the sale deed it was categorically mentioned that the possession of the property as to the suit property was handed over to the purchasers then the main decree holder had no legal right to get the decree executed.

4. For bringing this fact before the knowledge of the Executing Court an application under section 151 of CPC was filed, but the same was rejected in a very cursorily and arbitrary manner. Thus, aggrieved by the aforesaid order the present petition has been filed.

5. The main contention which has been raised by the counsel for the petitioner is that once the property which is subject matter of the execution proceedings was already sold by the decree holder and in the sale deed it has been mentioned that the possession thereof has also been handed over to the purchasers then no right or title is left with the decree holder and execution of the said decree in their hands was not maintainable.

6. It was further argued that when the possession of the land in question was already handed over to the purchasers then no question remained to file an application for execution and just to give undue benefits to third person the said execution has been filed which is liable to be dismissed. Thus, on the strength of the above arguments it was contended that the impugned order dated 31.8.2021 is perse illegal and deserves to be set aside.

7. Per contra learned counsel for the respondents contended that the suit filed was with regard to the possession and mesne profit against the defendants therein. The said suit was decreed in the year 2002 vide judgment and decree dated 25.2.2002. It was further contended that the survey numbers which were subject matter of the suit were sold to the respondents no.12 and 13 by way of registered sale deed on 28.2.2003, but the fact remains that by that time the possession of the land was not available with the sellers i.e. decree holder and therefore, on 17.7.2003 in pursuance to the judgment and decree the execution was filed.

8. It was further argued that though in the sale deed dated 28.2.2003 there is mention of the fact that possession of the said land has been handed over to the purchaser, but that was in ignorance of the fact that the possession of the said land has not been taken by the sellers in pursuance to the judgment and decree dated 2.5.20