(O&M) Chiranji Lal vs Dilbag Singh
- Court
- Punjab and Haryana High Court
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR-2302-2006 (O&M)
Chiranji Lal . . . . Petitioner
Vs.
Dilbag Singh . . . . Respondent
Reserved on: 05.11.2026
Pronounced on: 12.11.2026
Pronounced fully/operative part: Fully
CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA
Argued by:- Mr. Yash Tayal, Advocate for the petitioner.
Mr. Akshay Bhan, Senior Advocate with
Mr. Rohit Nagpal, Advocate for
the respondent.
DEEPAK GUPTA, J.
The present revision petition is directed against the order dated
12.12.2005 passed by learned Additional Civil Judge (Senior Division), Bhiwani,
whereby the objections filed by respondent–judgment-debtor Dilbag Singh
were accepted and Execution Petition No.22 of 1997, instituted by his father
Chiranji Lal for enforcement of an ejectment order dated 12.03.1992, was dis-
missed as infructuous on the basis of an alleged family settlement dated
18.12.1992.
2. During pendency of the revision petition, Chiranji Lal expired on
16.09.2011 and his legal representatives were brought on record vide order
dated 09.09.2014. The revision is now being prosecuted mainly by his daughter,
who is also the sister of respondent Dilbag Singh.
Factual background
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3. Briefly, Chiranji Lal purchased a residential plot measuring 308.5
square yards situated at Jagat Colony, Bhiwani, through registered sale deed
dated 02.07.1981. The property was his self-acquired property. On 06.02.1985,
he let out one room therein to his son Dilbag Singh at a monthly rent of ₹150/-.
Subsequently, alleging non-payment of rent and impairment of the value and
utility of the premises, Chiranji Lal instituted ejectment proceedings before the
Rent Controller, Bhiwani, on 12.02.1988.
4. Vide order dated 12.03.1992, the Rent Controller allowed the
ejectment petition and directed Dilbag Singh to deliver vacant possession of the
demised premises. The said order attained finality. However, the decree-holder
instituted Execution Petition No.22 of 1997 only on 22.03.1997.
5. The respondent filed objections on 15.09.1997, contending that
subsequent to the ejectment order, a family settlement had taken place
between him and his father on 18.12.1992, whereby an area measuring 100
square yards on the southern side of the plot, including the disputed room, had
fallen to his share. According to him, he had become absolute owner in
possession of the said portion and, consequently, the decree-holder had waived
his right to enforce the ejectment order.
6. Chiranji Lal contested the objections, denying any valid transfer of
ownership. He asserted that his signatures had been obtained on blank stamp
papers and that the alleged settlement could neither confer ownership upon
the respondent nor extinguish the ejectment order.
7. Initially, the Executing Court dismissed the objections on
17.01.1998 and ordered issuance of warrants of possession. The respondent
challenged that order before this Court by filing CR No.608 of 1998. Vide
judgment dated 12.03.1998, this Court set aside the order of the Executing
Court and remitted the matter for adjudication after affording the parties an
opportunity to lead evidence concerning the alleged satisfaction or waiver of
the ejectment order on the basis of the family settlement. The remand was
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made conditional upon the respondent depositing ₹12,500/- towards the
stipulated annual payments and furnishing security concerning one-third of the
marriage expenses of his sister. The respondent complied with the said
condition.
8. Pursuant thereto, the Executing Court framed issues on 18.04.1998.
The respondent was permitted to lead secondary evidence concerning the
alleged family settlement vide order dated 29.07.1999, and a photocopy thereof
was brought on record as Ex.P1/Ex.DHW2/B. Both parties led evidence.
9. Meanwhile, Chiranji Lal had instituted Civil Suit No.444 of 1997
against the respondent for permanent injunction. In those proceedings, the
respondent asserted ownership over the disputed property on the basis of the
same family settlement. Vide judgment dated 06.08.2002, the Civil Court
decided the issue concerning his alleged ownership against him. The respondent
preferred an appeal against that judgment, which was stated to be pending
when the impugned order was passed.
10. After appreciating the evidence, learned Executing Court, vide
impugned order dated 12.12.2005, held that the family settlement stood
proved; that the writing was merely a memorandum recording an earlier oral
arrangement and therefore did not require registration; and that the decree-
holder had waived his right to seek possession. Consequently, the objections
were accepted and the execution petition was dismissed as infructuous.
Submissions of the parties
11. Learned counsel for the petitioners submits that the Executing
Court committed a patent illegality in treating an unregistered and inadequately
stamped photocopy of an alleged family settlement as sufficient to defeat a final
ejectment order. It is contended that the property was admittedly self-acquired
by Chiranji Lal and the respondent, being merely his son and tenant, had no
antecedent ownership interest therein. The alleged settlement, therefore, could
not be treated as a bona fide family arrangement recognising pre-existing rights.
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Rather, it purported to confer ownership upon the respondent for the first time
and consequently required compulsory registration.
12. It is further argued that the alleged arrangement amounted to an
adjustment of the ejectment order outside the Court and, having neither been
certified nor recorded in accordance with Order XXI Rule 2 CPC, could not be
recognised by the Executing Court. Attention is also drawn to the fact that the
writing dated 18.12.1992 does not contain any reference to the ejectment order
or any express relinquishment of the decree-holder's right to enforce it. The
finding of waiver, according to learned counsel, is therefore wholly conjectural.
13. Learned counsel further submits that the Executing Court failed to
give due effect to the judgment dated 06.08.2002 (in CS No.444 of 1997)
rendered between the same parties, wherein the respondent's claim of
ownership on the basis of the alleged family settlement had been rejected.
Reliance has been placed upon Sultana Begum v. Prem Chand Jain, (1997) 1
SCC 373; Lakshmi Narayanan v. S.S. Pandian, (2000) 7 SCC 240; Kale v. Deputy
Director of Consolidation, (1976) 3 SCC 119; Sita Ram Bhama v. Ramvatar
Bhama, (2018) 15 SCC 130; and Hariom Agrawal v. Prakash Chand Malviya,
(2007) 8 SCC 514 , besides other authorities cited in the written submissions.
14. Per contra , learned Senior Counsel appearing for the respondent
supports the impugned order. It is submitted that the settlement was voluntarily
arrived at between father and son in the presence of family members and
respectable persons. The document merely recorded an earlier oral family
arrangement under which the respondent was acknowledged as owner of the
southern portion measuring 100 square yards. Its execution stood proved
through the testimony of the respondent and the attesting witnesses, while the
decree-holder had not denied his signatures.
15. It is further submitted that the respondent complied with the
conditions imposed by this Court while remanding the matter in 1998 and
deposited ₹12,500/-. The conduct of Chiranji Lal, including his failure to seek
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execution for nearly five years after the ejectment order, is stated to support the
finding that the decree had been waived. Learned Senior Counsel also contends
that the Executing Court returned findings after appreciation of oral and
documentary evidence, which do not warrant any interference in revisional
jurisdiction.
Consideration by this Court
16. Having heard learned counsel for the parties and examined the
record, this Court finds that the impugned order cannot be sustained.
17. The main controversy is whether the alleged family settlement
dated 18.12.1992 could legally operate to extinguish the ejectment order dated
12.03.1992 and whether the Executing Court was justified in holding that the
decree-holder had waived his right to obtain possession. An additional question
arises on account of the subsequent death of Chiranji Lal, namely, whether the
respondent, being one of his legal heirs, has acquired an undivided ownership
interest in the property and, if so, its effect upon execution.
Effect of Order XXI Rule 2 CPC and the earlier remand order
18. Order XXI Rule 2 CPC provides the statutory mechanism for
recording payment or adjustment of a decree outside the Court. Sub-rule (3)
expressly prohibits recognition by an Executing Court of a payment or
adjustment which has not been certified or recorded in accordance with the
provision. Article 125 of the Limitation Act, 1963 prescribes thirty days for an
application to record adjustment or satisfaction of a decree.
19. In Sultana Begum v. Prem Chand Jain (supra) , the Hon'ble
Supreme Court explained that the special provisions of Order XXI Rule 2
governing adjustment of decrees cannot be circumvented by invoking the
general jurisdiction of the Executing Court under Section 47 CPC. Similar
principles were reiterated in Lakshmi Narayanan v. S.S. Pandian (supra).
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20. In the present case, the alleged settlement was dated 18.12.1992,
whereas the respondent raised the plea of satisfaction for the first time through
objections filed on 15.09.1997. Admittedly, the decree-holder had not certified
any adjustment of the ejectment order. Nor had the alleged adjustment been
recorded by the Executing Court within the prescribed period.
21. However, one material circumstance cannot be overlooked. In CR
No.608 of 1998, this Court, vide judgment dated 12.03.1998, specifically
remitted the matter for adjudication of the objections concerning satisfaction or
waiver of the decree on the basis of the alleged family settlement. The remand
order attained finality between the parties, and the respondent complied with
the conditions imposed therein.
22. It is settled that a decision rendered at an earlier stage of the same
proceedings ordinarily binds the parties at a subsequent stage. Reference may
be made to Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941 . In view of
the specific remand order, it would not be appropriate to hold at this stage that
the Executing Court lacked jurisdiction even to entertain or examine the
objections. The earlier order had expressly required such examination.
23. Nevertheless, the remand order did not declare the alleged
settlement valid or the ejectment order satisfied. It merely afforded the
respondent an opportunity to establish his plea in accordance with law. The
Executing Court was therefore required to determine whether the alleged
arrangement was legally effective and whether waiver or satisfaction of the
decree stood proved. The statutory requirements governing registration,
admissibility and legal effect of the document remained applicable.
Nature and legal effect of the alleged family settlement
24. A perusal of the memorandum dated 18.12.1992 reveals that
Chiranji Lal was described as the absolute owner in possession of the plot. It
further recites that an area measuring 100 square yards on its southern side,
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containing a constructed kotha, had been given to Dilbag Singh, who had
become its absolute owner in possession.
25. The memorandum also stipulated that Dilbag Singh would pay
₹2,500/- annually to his father for five years and contribute one-third of the
marriage expenses of his sister. In the event of default in payment of the
marriage expenses, Chiranji Lal was stated to be entitled to take back the plot or
transfer it to another person, whereupon Dilbag Singh would be bound to
deliver possession.
26. The distinction between a genuine family settlement and an
instrument creating rights in immovable property is well recognised. In Kale v.
Deputy Director of Consolidation (supra), the Hon’ble Supreme Court held that
a bona fide family arrangement resolving existing or possible claims among
family members is enforceable and that a memorandum merely recording an
earlier completed oral arrangement does not require registration. However,
where the document itself creates or extinguishes rights in immovable property,
registration is compulsory.
27. In Sita Ram Bhama v. Ramvatar Bhama (supra) , the Hon’ble
Supreme Court reiterated that the nomenclature assigned to a document is not
decisive. The Court must examine its substance and determine whether it
merely records an earlier arrangement or itself constitutes the instrument by
which rights are created, declared or relinquished.
28. In the present case, the property was admittedly self-acquired by
Chiranji Lal. The respondent did not possess any ownership interest therein by
birth. His relationship with the disputed room was that of a tenant, against
whom an ejectment order had already been passed. No antecedent ownership
right or bona fide competing claim to the property has been established.
29. The Executing Court proceeded on the premise that because the
parties were father and son and the document referred to an earlier family
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settlement, it necessarily constituted a memorandum exempt from registration.
Such an approach overlooks the essential distinction between recognition of an
existing claim and creation of ownership rights for the first time.
30. The writing purports to confer absolute ownership of a specified
portion upon the respondent while simultaneously imposing monetary
obligations and reserving a right of resumption in favour of Chiranji Lal upon
default. These stipulations concern substantive rights in immovable property.
The mere recital that an oral arrangement had earlier taken place cannot, in the
circumstances of the case, establish that a completed and legally effective
transfer had already occurred independently of the writing.
31. If the transaction was intended to operate as a gift of immovable
property, it was required to comply with Section 123 of the Transfer of Property
Act, 1882. If the writing itself created or declared an ownership interest in
immovable property worth ₹100/- or more, compulsory registration was
required under Section 17(1)(b) of the Registration Act, 1908.
32. The alleged memorandum is admittedly unregistered.
Consequently, to the extent that it purports to create or declare ownership
rights in the disputed immovable property, it cannot be given effect in view of
Section 49 of the Registration Act. Its use for a legally permissible collateral
purpose stands on a different footing, but the respondent cannot rely upon it to
establish the very transfer of ownership which required registration.
33. The Executing Court thus committed a material error of law in
holding that the respondent had become absolute owner of the disputed
premises merely on the strength of the alleged memorandum.
Admissibility of the photocopy and appreciation of evidence
34. Another circumstance requiring consideration is that the original
memorandum was never produced before the Executing Court. The respondent
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relied upon a photocopy, which was permitted to be tendered as secondary
evidence.
35. Permission to lead secondary evidence does not, by itself, establish
the genuineness, execution or legal efficacy of a document. Nor does it dispense
with the requirements of the Registration Act or the applicable stamp law. In
Hariom Agrawal v. Prakash Chand Malviya (supra), the Hon’ble Supreme Court
explained the restrictions concerning admission of secondary evidence of an
instrument chargeable with stamp duty.
36. The petitioners have also questioned the admissibility of the
photocopy on the ground that the alleged settlement was written on stamp
paper of ₹5/-. However, it is unnecessary to finally determine the objections
concerning stamp duty, since the document, even assuming its execution to
have been proved, cannot legally establish the transfer of ownership asserted by
the respondent.
37. The Executing Court placed considerable reliance upon the
testimony of the attesting witnesses and the fact that Chiranji Lal had not
denied his signatures. It also disbelieved his explanation that signatures had
been obtained on blank stamp papers for purposes relating to the Electricity
Department. Even if these findings concerning execution are accepted, they do
not establish that the respondent acquired ownership or that the ejectment
order stood extinguished. Proof of execution and proof of the legal
consequences attributed to a document are distinct matters.
Whether the ejectment order stood waived
38. The Executing Court has further held that Chiranji Lal waived his
right to obtain possession by entering into the alleged settlement. This finding is
unsustainable.
39. Waiver involves intentional relinquishment of a known right and
must be established by clear and unequivocal conduct. In Krishna Bahadur v.
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M/s Purna Theatre and ors., (2004) 8 SCC 229, the Hon’ble Supreme Court
explained that waiver cannot be lightly inferred and must be founded upon
circumstances establishing conscious abandonment of the right.
40. Importantly, the memorandum dated 18.12.1992 does not refer to
the ejectment order dated 12.03.1992. It contains no express undertaking by
Chiranji Lal not to execute the order, nor does it record that the respondent's
liability to deliver possession stood discharged. Indeed, the Executing Court
itself noticed that the writing was silent regarding waiver of the ejectment
order.
41. The finding of waiver was principally inferred from the relationship
between father and son and the fact that execution was sought nearly five years
after the ejectment order. Neither circumstance is sufficient to establish
abandonment of a final adjudication. The decree-holder was entitled to seek
execution within the period prescribed by Article 136 of the Limitation Act. His
decision to institute execution in 1997, within limitation, cannot be treated as
evidence of waiver.
42. Moreover, Chiranji Lal actively disputed the alleged settlement,
resisted the respondent's objections and instituted separate civil proceedings
challenging his claim of ownership. Such conduct is inconsistent with the
conclusion that he had voluntarily and unequivocally relinquished his right
under the ejectment order.
43. The respondent's deposit of ₹12,500/- pursuant to the conditional
remand order dated 12.03.1998 also does not establish satisfaction of the
decree. The amount was deposited pursuant to a judicial direction and cannot,
by itself, be treated as proof that the decree-holder accepted the alleged
arrangement in substitution of the ejectment order.
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44. Consequently, neither waiver nor estoppel against the decree-
holder stands established. The Executing Court erred in treating the alleged
settlement as having rendered the ejectment order inexecutable.
Effect of the civil judgment dated 06.08.2002
45. The Executing Court also failed to give due consideration to the
judgment dated 06.08.2002 rendered in Civil Suit No.444 of 1997 between the
same parties. In those proceedings, the respondent had asserted ownership of
the disputed property on the basis of the same family settlement, but the
relevant issue was decided against him.
46. The Executing Court declined to attach much importance to that
judgment primarily because an appeal was stated to be pending. Mere filing of
an appeal does not, by itself, suspend the operation of a judgment or decree.
Nevertheless, since the subsequent appellate status of that judgment has not
been established from the material presently available, this Court does not rest
its conclusion exclusively upon the principle of res judicata.
47. The impugned order is liable to be set aside independently on
account of the erroneous legal effect attributed to the alleged settlement and
the absence of legally sustainable proof of waiver or satisfaction of the
ejectment order.
Effect of the subsequent death of Chiranji Lal and inheritance by the
respondent
48. There is an important subsequent development. Chiranji Lal
expired on 16.09.2011 during pendency of the present revision petition.
Respondent Dilbag Singh, being one of his sons, is also among his legal heirs.
The question, therefore, arises whether his acquisition of an undivided
ownership interest in the property by succession affects the enforceability of
the ejectment order.
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49. If Chiranji Lal died intestate and the disputed property continued to
form part of his estate, it would devolve upon his Class I heirs in accordance
with Sections 8 and 10 of the Hindu Succession Act, 1956. Under Section 19 of
the Act, the heirs would take their respective shares as tenants-in-common. The
respondent, therefore, would acquire an undivided fractional ownership
interest in the estate, subject to determination of the complete succession
particulars and any legally effective testamentary or other disposition.
50. However, acquisition of an undivided share by succession cannot
be equated with exclusive ownership of the disputed premises. A co-sharer
ordinarily possesses an interest in every part of the joint property, but cannot
claim exclusive ownership of any specified portion merely by virtue of
inheritance. Such rights are subject to partition or any other lawful arrangement
determining the respective entitlements of the co-sharers.
51. In T. Lakshmipathi and ors. v. P. Nithyananda Reddy and ors.,
(2003) 5 SCC 150, and Pramod Kumar Jaiswal and ors. v. Bibi Husn Bano and
ors., (2005) 5 SCC 492 , the Hon’ble Supreme Court explained the principle
governing merger of tenancy under Section 111(d) of the Transfer of Property
Act. Merger requires the entire interests of the lessor and lessee in the property
to vest in the same person in the same right. Acquisition of merely a fractional
interest in the landlord's ownership does not result in merger of tenancy.
52. In the present case, the respondent's position is distinguishable in
an additional respect. The ejectment order had already been passed against him
on 12.03.1992, nearly two decades before the death of Chiranji Lal. The
respondent's subsequent acquisition of an undivided ownership interest by
inheritance cannot retrospectively invalidate that order or establish that the
decree stood satisfied when the impugned order was passed on 12.12.2005.
53. Equally, succession to an undivided share is not an adjustment,
satisfaction or discharge of the ejectment order. It creates a distinct ownership
interest which must be worked out in accordance with the law governing co-
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ownership and partition. It does not confer upon the respondent exclusive title
to the particular room from which he had been ordered to be ejected.
54. The right to enforce the ejectment order survived the death of
Chiranji Lal and devolved upon his estate. The decree was not founded upon a
personal requirement, which ceased upon his death, but arose from the
grounds of arrears of rent and impairment of the demised premises. The other
legal representatives are, therefore, entitled to prosecute the proceedings for
the benefit of the estate.
55. It is settled that one co-owner may, in appropriate circumstances,
maintain proceedings for eviction of a tenant for the benefit of the co-owners.
Reference may be made to Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184 .
The respondent's subsequent acquisition of an undivided share does not,
merely by itself, defeat the final ejectment order.
56. At the same time, the respondent's independent rights as a legal
heir cannot be extinguished by execution of the ejectment order. His
entitlement to an undivided share in the estate of Chiranji Lal, if established in
accordance with law, shall remain unaffected. He would be entitled to seek
partition and separate possession of his lawful share through appropriate
proceedings.
57. Thus, the subsequent death of Chiranji Lal does not validate the
alleged family settlement dated 18.12.1992, nor does it render the impugned
order dated 12.12.2005 legally sustainable. The respondent cannot rely upon his
subsequently acquired undivided ownership interest to assert exclusive
ownership of the demised premises or to defeat the rights flowing from the final
ejectment order.
58. The distinction between the respondent's liability under the
ejectment order and his independent rights as a co-sharer must nevertheless be
maintained. Execution of the ejectment order would not amount to partition of
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the estate or adjudication of the respective ownership shares of the heirs. Any
possession obtained in execution would remain subject to the lawful rights of all
co-sharers, including the respondent, and to any subsequent partition or other
competent adjudication.
Conclusion
59. In view of the foregoing discussion, this Court finds that the
Executing Court committed material irregularity in accepting the objections filed
by the respondent and dismissing the execution petition as infructuous. The
alleged memorandum dated 18.12.1992 could not be treated as having
conferred absolute ownership of the disputed premises upon the respondent,
nor was there sufficient legal basis to conclude that the decree-holder had
waived his right to enforce the ejectment order.
60. The Executing Court failed to correctly appreciate the distinction
between a memorandum recording an earlier completed family arrangement
and an instrument creating ownership rights in immovable property. It also
inferred waiver of a final ejectment order from circumstances which did not
establish intentional and unequivocal relinquishment of the decree-holder's
rights.
61. The subsequent death of Chiranji Lal and the respondent's possible
acquisition of an undivided ownership interest by succession do not
retrospectively validate the impugned order or extinguish the ejectment decree.
Such inheritance creates independent rights as a co-sharer, which remain
subject to determination in accordance with law.
62. The ejectment order was passed on 12.03.1992, and the execution
petition was instituted in 1997. The litigation has continued for nearly three
decades thereafter. The original decree-holder has since expired without
obtaining the fruits of the adjudication in his favour. The matter has already
been remitted once by this Court, and the parties have led evidence on the
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disputed settlement. Another remand for reconsideration of the same
objections would only further prolong the proceedings unnecessarily.
63. The material necessary for adjudicating the legality of the
impugned order is available on record. Accordingly, no useful purpose would be
served by remitting the matter for fresh determination of the objections.
Order
64. Consequently, the present revision petition is allowed. The
impugned order dated 12.12.2005 passed by learned Additional Civil Judge
(Senior Division), Bhiwani, in Execution Petition No.22 of 1997 is hereby set
aside. The objections filed by respondent–judgment-debtor Dilbag Singh on
15.09.1997, seeking dismissal of the execution petition on the basis of the
alleged family settlement dated 18.12.1992, stand dismissed.
65. Execution Petition No.22 of 1997 is restored to its original number
and stage. The Executing Court shall proceed with enforcement of the
ejectment order dated 12.03.1992 in accordance with law, without reopening
the objections concerning the alleged family settlement or waiver of the decree,
which stand decided by this judgment.
66. It is clarified that the respondent's independent rights, if any, as a
co-sharer in the estate of deceased Chiranji Lal shall remain unaffected. The
execution proceedings shall not be construed as determining the respective
ownership shares of the legal heirs or as conferring exclusive title upon any
particular legal representative. The parties shall remain at liberty to seek
partition or other appropriate relief concerning their inter se proprietary rights
in accordance with law.
67. The amount of ₹12,500/- deposited by the respondent pursuant to
the order dated 12.03.1998, together with any accrued interest, shall be dealt
with by the Executing Court in accordance with law after determining whether
the amount has already been disbursed or adjusted. The security furnished
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pursuant to the said order shall also be dealt with appropriately, having regard
to the purpose for which it was furnished and any subsisting obligation.
68. Considering the extraordinary delay, the Executing Court shall take
up the matter expeditiously and make every endeavour to conclude the
execution proceedings within three months from the date of receipt of a
certified copy of this judgment, subject to any subsisting order of a competent
Court. There shall be no order as to costs. Pending miscellaneous applications, if
any, shall also stand disposed of.
(DEEPAK GUPTA)
JUDGE
12.11.2026
Neetika Tuteja
Whether speaking/reasoned? Yes
Whether reportable? Yes
Uploaded on.: 12.11.2026
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