CRP 4/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. S.S. Dey, the learned counsel for the petitioner and Mr. M.Z. Ahmed, the learned Sr. counsel appearing for the respondent. The petitioner, who is the defendant decree holder in T.S. 12/2005 is ag grieved by the order dated 23.12.2009 passed by the learned Presiding Officer, S ubordinate District Council Court, Shillong in the said suit which reads as foll ows:- Case record is put up today for orders. Seen the execution report dated 22.12.09 alongwith the seizure list subm itted by the Bailiff. The execution was carried out by the Bailiff on 22.12.09 as the copy of the order dated 21.12.09 which was kept in abeyance could not be served as he wa s not found. The Bailiff had also submitted all the list of seizure materials. Later. The Ld. Addl. Judge vide order dated today passed in M.C.A. 7 of 2009 ha d called for the records and stayed the order dated 21.12.09. I have perused the order. In view of the said order the Bailiff is directed to return the seized m aterials to the suit property pending final order of the Ld. Addl. Judge in M.C. A. No.7 of 2009. Thereafter the Bailiff is directed to submit a report according ly. The B.A. is directed to transmit the entire case record to the Ld. Court of the Ld. Addl. Judge D.C.C. Send a copy of this order to the Judgment Debtor and the Decree Holder f or information. Also send a copy of this order to the Bailiff for taking the necessary s teps. Later. The defendant/Decree Holder filed petition No.525/09 with a prayer to di rect the Bailiff to hand over the keys to the defendant. Heard the Ld. Counsel for the defendant. Petition is allowed. Bailiff is directed to hand over the keys to the defendant. Send a copy to the Bailiff. It has been contended by Mr. Dey, the learned counsel for the petitioner that pursuant to the decree dated 30.09.2009 passed in T.S. 12/2005 in favour o f the present petitioner, the same was executed on 17.12.2009 in terms of the or der dated 16.12.2009 passed by the learned Executing Court directing the Bailiff and consequently the execution report was submitted on 22.12.2009. But the lear ned court below after such execution, despite the order dated 23.12.2009 passed in Misc. Civil Appeal No.7/2009 preferred by the present petitioner against the order dated 21.12.2009 passed by the learned Executing Court staying the executi on of the decree passed in T.S. No.12/2005, wherein such order of stay dated 21. 12.2009 has been stayed, the learned Trial court in the said suit directed retu rn the seized materials to the suit property pending final order in the appeal being Misc. Civil Appeal No.7/2009. According to Mr. Dey the effect of the said order is to put back the judgment debtor into the possession of the suit propert y, execution of which has already been done prior to at least passing of the ord er dated 22.12.2009. Mr. Ahmed, the learned Sr. counsel appearing for the respondent on the o ther hand has submitted that the respondent being aggrieved by the decree dated 30.09.2009 passed in T.S. 12/2005 preferred an appeal before the learned Appella te Court in Misc. Civil Appeal No.7/2009, which is still pending. In such appeal passing of the decree in the absence of any prayer by the defendant by way of c ounter claim has been challenged. It has further been submitted by Mr. Ahmed, th e learned Sr. counsel that despite the order dated 21.12.2009 passed in the exec ution proceeding by the learned Executing Court staying the execution of the dec ree, the execution was carried out on 21.12.2009 and as such the learned court b elow has not committed any illegality in passing the impugned order dated 23.12. 2009. Mr. Ahmed, however, has submitted that the respondent is interested in get ting back the property seized from the suit premises in question, which were sei zed during the execution of the decree passed. It is evident from the order dated 23.12.2009 impugned in the present pe tition that though initially the execution of the decree passed in the said suit was stayed by the Executing Court vide order dated 21.12.2009, such stay order has been stayed by the learned Addl. Judge, District Council Court vide order da ted 23.12.2009 passed in Misc. Civil Appeal No.7/2009, which appeal has been pre ferred by the present petitioner. The order dated 23.12.2009 further reveals tha t the execution of such decree passed has already been carried out before receip t of such stay order dated 21.12.2009 passed by the learned Executing Court and certain properties were seized from the suit premises. By the said order dated 2 3.12.2009 the learned court below has also directed the bailiff to handover the keys of the suit premises to the present petitioner, who was the defendant in th e said suit. Having passed the said order, the learned court below ought not to have directed return of the seized materials to the suit property. Hence that part of the order directing return of the seized materials to the suit property is set aside. The seized properties shall be returned to the present respondent by the learned Executing Court. It is needless to say that this order is subject to the final order that may be passed in Misc. Civil Appeal No.7/2009 and the appeal preferred by the p laintiff/ respondent, which is stated to be pending for admission. The revision petition is accordingly allowed to the extent as indicated above. No cost.