Judgment:
ORDER
Jagadeesan, J.
1. The C.M.P. was listed on 7.10.1996. Since counsel for the respondent was absent the matter was posted today. Today also counsel for the respondent is absent.
2. The respondent herein is the decree-holder in O.S. No. 359 of 1989 and the petitioner is the son of the judgment-debtor. When the respondent filed the execution petition to recover the money as per the decree by bringing the properties of the judgment-debtor for sale, the petitioner herein filed R.E.A. No. 434 of 1994 putting forth a claim in the properties that were sought to be sold. His case is that the properties were divided between himself and his father, the judgment-debtor and now the decree-holder is trying to bring the entire properties for sale. Pending the claim petition, he also filed R.E.A. No. 441 of 1994 to stay the execution proceedings. The Executing Court dismissed the said petition that is R.E.A. No. 441 of 1994 by order dated 9.6.1994. The said order is as follows:
Heard. Oral partition is set-up in the claim petition. No document is also produced by petitioner. Sufficient cause is not shows to stop sale. Hence petition is dismissed.
3. When a claim petition has been filed claiming right in the property, naturally, till such dispute is settled, stay of further proceedings in the E.P. has to be made. But in this case the lower court has almost given a finding in the stay petition which finding is necessary for the disposal of the claim petition. Keeping the claim petition pending, it is not proper for the court below to dismiss the stay petition for the reasons that would be relevant for the dismissal of the claim petition itself.
4. Further, it may be pertinent to note that the petitioner has stated that the properties have been divided and he has no objection for the sale of the properties that had been allotted to the share of his father. Hence the lower court has to consider whether the properties had been divided already and whether the properties allotted to the share of the father of the petitioner would be sufficient enough to discharge the decree debt. If that be so, there cannot be any objection to bring the properties for sale that had been allotted to the share of the father of the petitioner/judgment-debtor, in order to realise the decree debt. If that is not sufficient, then only the petitioner's share can be made liable under the pious obligation. Hence, the reasons given by the court below for the dismissal of the R.E.A. No. 441 of 1994 cannot be sustained. The executing court is directed to take up the claim petition R.E.A. No. 434 of 1994 for hearing and dispose of the same within two months from the date of receipt of a copy of the order in this civil revision petition and report the same. Till then there will be stay of the execution of the proceedings. The civil revision petition is ordered accordingly.