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‑‑ O. XXI, r. 26 read with Ss. 38 & 47‑‑Execution of decree‑Stay‑Suit for possession of land through pre‑emption decreed against petitioner and others‑‑Executing Court dismissing petitioner's application for stay of execution proceedings filed on ground of suit having been decreed only for a portion of such land‑Petitioner however not stating in stay of execution his intention to approach trial Court or appellate Court for obtaining stay order against execution of decree‑Suit having bcen decreed for entire

land, execution Court, held, could not go behind decree sought to be executed and petitioner's application for stay of execution proceedings rightly dismissed by executing Court.‑[Decree].

Fayyaz Ahmad for Petitioner.

Ilam Din son

of Muhammad Din and Siraj Din son of Muhammad Bakhsh, who are respondents in this civil revision, filed a suit for possession of 103 kanals and 10 marlas of land through pre‑emption. Chiragh Din and nine others including the petitioner, Ilam Din son of Mehr Din, were defendants in that suit. The suit was decreed by a Civil Judge on the basis of a compromise entered into

by the parties. When the respondents filed an application for execution of the decree, the petitioner made an application under Order XXI, rule 26 of the Code of Civil Procedure, for stay of the execution proceedings, contending that the suit was decreed in respect of land measuring 58 kanals and 12 marlas and not 103 kanals and 10 marlas. His' application was, however, dismissed by the executing Court. On this, the petitioner went in appeal before an Additional District Judge but in vain. He has, therefore, come up in revision

to this Court.

2. Rule 26 of Order XXI

of the Code of Civil Procedure reads as follows;

"When Court may stay execution.‑(1) The Court to which a decree has been sent for execution shall, upon sufficient cause, being shown, stay the execution of such decree for a reasonable time, to enable the judgment debtor to apply to the Court by which the, decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution which might have been made by such Court of first instance or appellate Court if execution had been issued thereby, or if application for execution had been made thereto.

(2) Where the property or person of the judgment‑debtor has been seized under an execution the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application."

These provisions make it abundantly clear that they can be made use of by a judgment‑debtor for seeking temporary stay of execution proceedings with a view to obtaining an order of the trial Court or the appellate Court in regard to the decree or its execution. In the application made by the petitioner, however, it was not stated by him that he intended to approach the trial Court or the appellate Court for such an order and, therefore, the execution proceedings might be suspended. What was, in fact, submitted by him in the application was that the decree could be executed only in respect of 58 kanals and 12 marlas of land out of the disputed land measuring 103 kanals and 10 marlas and not in regard to the whole of the disputed land. As stated above, the suit of the respondents for the entire land had been decreed and the executing Court could not go behind the decree sought to be executed. The petitioner's application was, therefore, obviously, misconceived and was rightly dismissed by the learned executing Court.

3. The revision petition is, accordingly, dismissed in limine.

s. M. A. Petition dismissed.

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