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1. The instant appeal is filed by the Obstructor to challenge the common order dt. 23-7-96 passed on I.A. No. 3 filed by the respondent 1(i) and 1(ii) herein, an unnumbered I.A. filed by the appellant -- obstructor under Section 151 of C.P.C. and a memo filed by the Court Receiver in FDP 56/86 passed by the Court of IX Additional City Civil Judge and Sessions Judge at Bangalore City, whereby the Court while allowing I.A. No. 3 rejected the I.A. of the appellant -- obstructor and further directed that the obstruction placed by the appellant -- obstructor be removed with police help by the Court Receiver appointed by the Court to execute the warrant issued earlier by the Court to divide the suit property by metes and bounds or effect sale to distribute the sale proceeds among the parties in terms of the preliminary decree in the suit.

That one Rukn-ul-Mulk S. Abdul Wajid since dead, had filed O.S. No. 480/55 as against one Hurmath Unnisa Begum, Smt. Mahmooda Begum, Sri S. M. Taqi, Sri S.M.R. Askari, Sri. S.M.H. Hassan and Smt. Siddique Begum (all since dead) and Sri. M. A. Azeem, Sri. Kamar, Smt. Naz and Smt. Mehar, all at Spencer's Road, Cleavcland town, Civil Station, Bangalore. Now all the parties to the suit, except the defendants Nos. 7 to 10 to the original suit are all dead and gone and as such, the L. Rs. of the original plaintiff on the one side and the L.Rs. of the deceased defendants Nos. I to 6 and the living parties -- defendants Nos. 7 to 10 are pursuing the litigation presently in the stage of Final Decree Proceedings (in brief FDP henceforth) in No. 56/86 pending before the Court of IX Additional City Civil and Sessions Judge, Bangalore City (hereinafter referred to as the Court below for convenience) after the preliminary decree in the suit passed on 21 -9-56 giving certain shares as per the Mohammedan Law, also cofirmed by this Court on 21-10-59 in R.A. No. 9/57. For the reasons best known to the parties in the FDP, the FDP proceedings instituted under Sec. 54 and Ordcr 20, Rule 18(2) read with Sec. 151 of C.P.C. was filed as late as on 1-10-86. Time had its own healing effect, finally, the parties thereto after warring for long came around to sell the suit schedule property as the same was not found to be divisible beneficially and for that purpose, the Court below had appointed on 17-1-1991 one Anis Askari, the respondent No. 2 herein in this appeal as the Court Receiver; of course the said Court Receiver appointed is none other than one of the L.Rs. of the original defendant No. 4 now arrayed as respondent No. 4(b) to the FDP proceedings before the Court below.

26. It is true that the FDP before the Court below under Order 20, Rule 18(2) read with Section 24 filed by the respondents No. 1(i) and (ii) was not an execution proceedings, at all within the meaning of Order 2l, of C.P.C. and that the FDP is only an extension of the list in the original partition suit and that there is no executable decree as argued by the learned Counsel for the appellant obstructor. Further more, it is not in doubt that the FDP is only a proceedings in pursuance of a preliminary decree with the allotment of definite shares in the suit schedule property among the parties to suit. But it is to be noted importantly that in the FDP, the Court below was pleased to pass an order on 20-10-1992 to issue warrant to the Court Receiver in respect of the suit schedule property, in pursuance of which the Court Receiver, the respondent No. 2 herein was also issued with warrant with a copy of the preliminary decree and further the Memo of Instructions to take delivery of the possession of the suit schedule property either to effect the division of the suit property by metes and bounds in terms of the preliminary decree or in the alternative to effect sale of the same to distribute the sale proceeds in terms of the shares allotted to the parties thereto under the preliminary decree; obviously, that order is an executable order within the meaning of Section 36 of CPC: The said section was substituted by Act. 104 of 1976 with effect from 1-2-1977. The said Section 36 of of CPC falls in Part II under the head 'Execution' and the same reads as follows:

30. From the above, in my considered view, it is clear that an executable order falls within the meaning of Section 36 of CPC and therefore the provision in Order 21 of CPC as to execution is equally applicable as appli cable to the execution of decree or in other words an executable order is kept as part as that of an executable decree under the provi sion in Section 36 of CPC.

31. Therefore, I hold that in view of the order passed on 20-10-1992 by the Court below in the FDP to issue a warrant to the Court Receiver and in pursuance whereof the court below had directed the Court Receiver to take possession of the suit schedule property and further to divide the same by metes and bounds in consonance with the preliminary decree or in the alternative to effect sale and to divide the sale proceeds thereof in the ratio of the shares as set out in the preliminary decree, the I. A. 3 under Order 21, Rule 97 filed by the respondent No. 1(i) and (ii) in the FDP is perfectly maintainable, no matter, that the same was filed by the said respondents on a report by the Court Receiver reporting that the appellant obstructor had placed obstruction restraining him from executing the warrant in question. Hence, I answer point No. 1 in the affirmative.